Turner v Stone [2009] NSWSC 874

New South Wales Supreme Court

CITATION : Turner v Stone [2009] NSWSC 874

HEARING DATE(S) : 19 August 2009 JURISDICTION : Equity Division

JUDGMENT OF : Hamilton AJ

EX TEMPORE JUDGMENT DATE : 19 August 2009

DECISION : Proceedings adjourned for 3 months to facilitate implementation of settlement

CATCHWORDS : REAL PROPERTY [315] – Partition of land – Statutory trust for sale or partition – Discretion of Court – Existence and extent of discretion – Contractual limit on disposal of interest

LEGISLATION CITED : Conveyancing Act 1919, s 66G

CATEGORY : Procedural and other rulings

Hogan v Baseden (1997) 8 BPR 15,723 CASES CITED : Matsen v Matsen [2008] NSWSC 135 Ngatoa v Ford (1990) 19 NSWLR 72

PARTIES : Jeanette Lillian Turner (plaintiff) Lurline Ann Stone (defendant)

FILE NUMBER(S) : SC 2527/09

COUNSEL : F Kunc SC (plaintiff) D Hand (sol) (defendant)

SOLICITORS : A R Walmsley & Co (plaintiff) David Hand Solicitor (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON AJ

Wednesday, 19 August 2009

2527/09 Jeanette Lillian Turner v Lurline Ann Stone JUDGMENT (ex tempore) 1 HIS HONOUR: These are proceedings under s 66G of the Conveyancing Act 1919 between two sisters who are now co-owners of what was the home of their parents now both, unhappily, deceased ("the property"). The matter is fixed for hearing tomorrow. I brought it before me this morning and asked that the parties be personally present as well as represented by their lawyers, and this has been done. I have urged upon them the desirability of resolving the proceedings by agreement, if possible. Whilst there is not agreement as to precisely the course to be followed, there is substantial agreement on what should occur over the next three months towards resolving the situation. 2 There is no doubt on the evidence that the plaintiff, who is not without her financial problems but who is in much better health than the defendant, has promised in the past that the defendant should not be put out of the property, where she has lived since birth. However, the plaintiff now makes an application for sale and division of the proceeds under section 66G. The powers of the Court under that section are expressed to be discretionary. In fact, there are limits on the basis upon which the exercise of the discretion to refuse an order under the section can be exercised. 3 The law in that regard was discussed by me in my decision in Matsen v Matsen [2008] NSWSC 135 at [56]-[64]. It was clear by the time of the decision of Needham J in Ngatoa v Ford (1990) 19 NSWLR 72 that an order under s 66G could be refused if there was "some proprietary right, or some contractual or fiduciary obligation with which an order for sale would be inconsistent." Importantly, in Hogan v Baseden (1997) 8 BPR 15,723, Mason P made it plain that the contractual obligation which could operate in this way must arise from "a legally binding agreement." 4 I am not hearing the case at the moment and am not expressing a conclusion about the matter on a consideration of the whole of the evidence. But I find it, at the moment, hard to see on the material before me that there was a legally binding contract which would provide a basis to refuse the appointment of trustees for sale. I say this because there is no doubt the promise was not contained in a deed and it seems to me highly doubtful that, whatever other agreement there was between the parties, there was consideration given for the relevant promise. A case based on estoppel is possible but, in my view, on the evidence, so far as I have seen it, it would face similar difficulties. 5 Fortunately for the settlement of this dispute, despite the defendant's understandable attachment to the home in which she has always lived, her health problems have become such that she herself acknowledges the desirability of her accommodation being changed to some institution in which she can receive a higher degree of care and support. However, it has not been possible to date to find her a position in such an institution comparatively close to where she lives. That is important because she has connections with the district. One important connection is her attachment to the Presbyterian Church at Hurstville, whose members have provided her with a great deal of support including, in at least one instance, helping her with the present problem and providing evidence to be laid before the Court. 6 In these circumstances, it seems to me that the evidence points all one way as to the desirability of the subject property being sold and the defendant's share released to provide her with appropriate accommodation, and the plaintiff's share being able to come into her hands to help her deal with her life. The difficult question is when. 7 The parties have made very considerable progress today in that they have come to an agreement as to what should occur over the next three months in an effort within that time to find appropriate accommodation for the defendant. Whilst there have been some delays in dealing with the matter, particularly on the defendant's part, she has now agreed to a regime whereby the matter should be pursued and pursued largely by actions on her part or in which she needs to participate. And what is more, she has accepted the idea that she should appoint to assist her an organisation which has been suggested as suitable by the plaintiff. This shows an attitude of cooperation and reasonableness in dealing with the problem, which is sometimes quite lacking in family disputes, and encourages the Court to think that there will be proper endeavours to carry out the proposed regime. In fact, there is now not a great deal of difference between the parties as to what should occur. 8 Mr David Hand, solicitor, on behalf of the defendant asks for an adjournment for three months for the agreed program to be carried out to the intent that, if suitable accommodation be found within that time, the sale may be carried out between the parties, without the appointment of trustees for sale. This would obviate the incurring of further expense with the consequential diminution of the pool for distribution after the sale of what is, in 2009 terms, a modest property. 9 Mr Kunc, of Senior Counsel for the plaintiff, suggests that orders be made today with provision for their vacation in three months, if that becomes necessary or appropriate. Both these courses would save costs by obviating the need for a further hearing tomorrow. 10 There are two things that favour the course applied for by Mr Hand. One is that he does not have instructions to consent to the orders proposed by Mr Kunc if the matter not be adjourned. In view of the distance she has come today in agreeing to a sensible course to advance the matter, I do not regard this as unreasonable conduct on the defendant's part such as should mean that her wishes in the matter should be ignored. This would mean that, if the adjournment is not granted, the matter will proceed to trial tomorrow, all of the evidence will have to be taken and final decisions on matters which are not entirely easy will need to be made in some fashion. 11 The other thing that inclines me in favour of the course proposed by Mr Hand is that, bearing in mind the carefully prepared medical evidence of Dr German, which I have no reason to doubt, as to the psychological difficulties under which the defendant labours, it is my view that the defendant may be assisted by the absence of final orders imposed on her against her will to proceed in a cooperative and constructive manner to carry out the matters that she has agreed to carry out. 12 Mr Kunc has urged me that his course is indicated as the desirable course by the requirement on the Court to dispose of the proceedings in a manner which is just, quick and cheap. However, under either regime, there is the prospect, but not the certainty, of the matter coming back before the Court in November. I really do not think that there is any great difference from that point of view in proceeding in one way or the other. 13 As I already said, it is my view that there may be greater justice to the defendant in not imposing final orders of the Court upon her at this stage and, as I have already also indicated, that could not be done without proceeding to a final hearing of the summons. 14 In those circumstances, on the basis of the agreement handed up by Mr Kunc, I make the orders in the form of orders initialled by me and placed with the papers. I hope, and I have some considerable faith that this will be so, that the defendant will make every effort she can to carry out the proposed course within the time. As I say, I have considerable hope that she will be able to do so because of the attitude that both parties have exhibited today.