Robin Scott Forrest v William Lawrence Nix [2012] NSWSC 493

Supreme Court New South Wales

Medium Neutral Citation: Robin Scott Forrest v William Lawrence Nix [2012] NSWSC 493 Hearing dates: 16 and 17 April 2012 Decision date: 16 May 2012 Before: Ball J Decision: See paragraph 50 of this judgment. Catchwords: REAL PROPERTY - sale or partition - Co-owner seeking appointment of trustees for sale under s 66G of the Conveyancing Act 1919 - whether plaintiff has interest in property to which s 66G applies - plaintiff claiming one-third equitable interest pursuant to deed entered into with defendants - whether court ought to make order for appointment for trustees for sale - relevance of provisions of deed - whether provisions are impermissible restriction on alienation of property - whether restrictions in deed should be interpreted to be limited to life of parties where deed has no express term - whether order under s 66G should be made "almost as of right" - where deed still on foot and both parties are in breach - held that order should be refused. Legislation Cited: Conveyancing Act 1919 (NSW) Property Law Act 1969 (WA) Cases Cited: Bondi Beach Astra Retirement Village Pty Ltd v Gora [2011] NSWCA 396 Callahan v O'Neill [2002] NSWSC 877 Central Exchange Ltd v Anaconda Nickel Ltd (2002) 26 WAR 33 Chalhoub v Chalhoub [2005] NSWSC 572 Ngotoa v Ford (1990) 19 NSWLR 72 Nullagine Investments Pty Ltd v Western Australian Club Incorporated [1993] HCA 45; (1993) 177 CLR 635 Reuthlinger v MacDonald [1976] 2 NSWLR 88 Reuthlinger v MacDonald, 20 October 1976, NSWCA, unreported Tory v Tory [2007] NSWSC 1078 Category: Principal judgment Parties: Robin Scott Forrest (Plaintiff) William Lawrence Nix (First Defendant) Carole Anne Nix (Second Defendant) Representation: EA White (Plaintiff) RA Parsons (Defendants) Coleman Greig Lawyers (Plaintiff) Stanford Lawyers (Defendants) File Number(s): 2011/148829