Boyd v Thorn [2017] NSWCA 210

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boyd v Thorn [2017] NSWCA 210 Hearing dates: 11 May 2017 Decision date: 23 August 2017 Before: Macfarlan JA at [1]; Leeming JA at [63]; Emmett AJA at [191] Decision: 1. Appeal allowed in part.

2. Set aside order 6b made on 22 September 2016.

3. Otherwise dismiss the appeal.

4. Mrs Boyd to pay Mrs Thorn's costs of the appeal referable to ground 1. Mrs Thorn to pay Mr Boyd's costs referable to ground 2. Mr and Mrs Boyd be jointly and severally liable to pay Mrs Thorn's costs referable to ground 3. Catchwords: LAND LAW – appellants tenants-in-common of real property – equitable tracing by respondent – findings that first appellant guilty of unconscionable conduct and breach of fiduciary duty – second appellant only made a party to the proceedings after those findings had been made – whether the second appellant could challenge respondent's standing to apply for orders under s 66G of the Conveyancing Act 1919 (NSW) for the appointment of trustees for sale of the property –whether findings of breach of duty and unconscionability made against the first appellant binding on second appellant

ESTOPPEL – circumstances in which parties are bound by issue estoppels – consideration of principles of privity of interest where current party not a party to earlier proceedings – Tomlinson v Ramsey Food Processing (2016) 256 CLR 507; [2015] HCA 28 – second appellant did not have any legal interest in outcome of earlier proceedings nor later acquire a legal interest affected by an estoppel connected to the earlier proceedings