11 min
Ambrus v Buchanan [2022] NSWSC 1628 Coffee and a Case Note
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- Education
“Sell the land I own 1/56th of!”
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From the early 1980s a property was owned as tenants in common. Ownership was divided in sevenths: [6]
P owned one 40th of the 5/7th intersect - a 1/56th interest in the land. P sought the appointment of trustees to sell the property pursuant to s66G of the Conveyancing Act 1919 (NSW)
Each co-owner had “spheres of influence”. Some constructed residences: [9]
The use was contrary to zoning and no DAs were obtained: [11]
A 5 page “policy” document purported to deal with co-owners’ rights including a “no sale of land or transfer of shares unless all co owners agree” term: [16] - [26]
Copies of the policy were not made. The original was held by various owners over the years: [27]
The policy was only adhered to when convenient, and was contradicted at other times. New owners were not made aware of it before purchasing: [33] - [36]
To the extent the Ds were aware of the policy, that occurred after their respective purchases: [36] - [42]
In 2011, P purchased their 1/56th interest for $60K: [48]
The vendor - one of the Ds - did not get consent from other shareholders (as the policy apparently required) before effecting the transaction: [61]
P said they had not received the “policy” document before the purchase: [49] - [54]
Prior to XX, the Ds had put the “policy” as a central governing document of the property. This was shown to be untrue as it was regularly contradicted, include by vendor D: [58]
P had not returned to land since 2013, though remained owner of the land with her “sphere of influence” inaccessible except by vendor D’s driveway: [69]
From 2020 P began exploring selling her share. The Ds, particularly vendor D, were obstructive: [72] - [76]
The Ds argued appointing Tees would be an “extreme hardship” as all Ds would lose their homes: [84]
The Ds’ said P’s small proportion should militate against an order being made: [85], [86]
Unfairness and hardship are not enough to oppose a s66G order: [89]
The D’s argued that P’s application breached fiduciary obligations, gave rise to an estoppel, or was unconscionable. The Court rejected all: [98] - [101], [102] - [113]
Ds who had improved the land (despite low value due to non-compliance, no possibility for insurance, and elevated bushfire risk) could claim contributions from the sale proceeds: [116], [122]
The Court made the orders appointing Tees: [123], [130]
The Tees proposed by the Ds were appointed, as they were located closer to the property than the P’s proposed Tees: [127]
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Usually s66G legal costs are paid from sale proceeds: [1]
Unreasonable conduct may lead to a departure from this rule: [6]
P said the Ds should pay their own costs due to their unreasonable, failed defences; and that P’s fees should come from the sale. The Ds said all fees should be paid from sale: [7], [8]
The Court ordered that the Ds bear most of their own costs, save for those relating to the appointment of their preferred Tees: [9] - [16]
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“Sell the land I own 1/56th of!”
___
From the early 1980s a property was owned as tenants in common. Ownership was divided in sevenths: [6]
P owned one 40th of the 5/7th intersect - a 1/56th interest in the land. P sought the appointment of trustees to sell the property pursuant to s66G of the Conveyancing Act 1919 (NSW)
Each co-owner had “spheres of influence”. Some constructed residences: [9]
The use was contrary to zoning and no DAs were obtained: [11]
A 5 page “policy” document purported to deal with co-owners’ rights including a “no sale of land or transfer of shares unless all co owners agree” term: [16] - [26]
Copies of the policy were not made. The original was held by various owners over the years: [27]
The policy was only adhered to when convenient, and was contradicted at other times. New owners were not made aware of it before purchasing: [33] - [36]
To the extent the Ds were aware of the policy, that occurred after their respective purchases: [36] - [42]
In 2011, P purchased their 1/56th interest for $60K: [48]
The vendor - one of the Ds - did not get consent from other shareholders (as the policy apparently required) before effecting the transaction: [61]
P said they had not received the “policy” document before the purchase: [49] - [54]
Prior to XX, the Ds had put the “policy” as a central governing document of the property. This was shown to be untrue as it was regularly contradicted, include by vendor D: [58]
P had not returned to land since 2013, though remained owner of the land with her “sphere of influence” inaccessible except by vendor D’s driveway: [69]
From 2020 P began exploring selling her share. The Ds, particularly vendor D, were obstructive: [72] - [76]
The Ds argued appointing Tees would be an “extreme hardship” as all Ds would lose their homes: [84]
The Ds’ said P’s small proportion should militate against an order being made: [85], [86]
Unfairness and hardship are not enough to oppose a s66G order: [89]
The D’s argued that P’s application breached fiduciary obligations, gave rise to an estoppel, or was unconscionable. The Court rejected all: [98] - [101], [102] - [113]
Ds who had improved the land (despite low value due to non-compliance, no possibility for insurance, and elevated bushfire risk) could claim contributions from the sale proceeds: [116], [122]
The Court made the orders appointing Tees: [123], [130]
The Tees proposed by the Ds were appointed, as they were located closer to the property than the P’s proposed Tees: [127]
___
Usually s66G legal costs are paid from sale proceeds: [1]
Unreasonable conduct may lead to a departure from this rule: [6]
P said the Ds should pay their own costs due to their unreasonable, failed defences; and that P’s fees should come from the sale. The Ds said all fees should be paid from sale: [7], [8]
The Court ordered that the Ds bear most of their own costs, save for those relating to the appointment of their preferred Tees: [9] - [16]
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Please follow James d'Apice and Coffee and a Case Note on your favourite platform!
11 min