NSW Caselaw
New South Wales Supreme Court
CITATION : Rex Phillip Tory v Sarjit Kuar Tory [2007] NSWSC 1078
HEARING DATE(S) : 20/09/07
JUDGMENT DATE : 24 September 2007
JURISDICTION : Equity Division
JUDGMENT OF : White J
EX TEMPORE JUDGMENT DATE : 24 September 2007
DECISION : See paragraph 76 of the judgment.
CATCHWORDS : REAL PROPERTY – Sale or partition – Co-owner seeking sale under s 66G of Conveyancing Act 1919 (NSW) – Grounds for refusing sale or making order for sale on terms so that defendant entitled to purchase plaintiff's half share at value of half share rather than at half value of property if it were sold as a whole – Estoppel – Whether plaintiff made representation that he would not do anything inconsistent with holding property until rezoning or rezoning and development completed – No unequivocal representation made to such effect – Fiduciary duty – Any fiduciary relationship existing between parties does not extend to imposing obligation to hold property for purpose of rezoning or rezoning and development – Unconscionability – Unconscionability without more not a ground for refusing order for sale – Where detriment suffered by defendant was incurring of personal liability and mortgaging her share of property – Detriment redressed by plaintiff's undertaking to indemnify defendant for liabilities incurred by mortgage over property – Held that grounds for refusing order for sale or making order for sale on terms not made out.
Conveyancing Act 1919 (NSW) LEGISLATION CITED : Environmental Planning and Assessment Act 1979 (NSW) Real Property Act 1900 (NSW)
CASES CITED : Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068Callahan v O'Neill [2002] NSWSC 877 Ngatoa v Ford (1990) 19 NSWLR 72 Williams v Legg (1993) 29 NSWLR 687 Hogan v Baseden (1997) 8 BPR 15,723 Woodson (Sales) Pty Limited v Woodson (Australia) Pty Limited (1996) 7 BPR 14,685 Legione v Hateley (1983) 152 CLR 406 Giumelli v Giumelli (1999) 196 CLR 101 Commonwealth v Verwayen (1991) 170 CLR 394O'Neill v Williams [2006] NSWSC 707 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199Muschinski v Dodds (1985) 160 CLR 583Chan v Zacharia (1984) 154 CLR 178 Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569
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