Bhattacharyya v Sarikaya [2011] NSWSC 1017

A couple purchased property as joint tenants. Subsequently their relationship ended. The female partner sought the sale of the property but the male partner refused to consent unless an alleged debt owing was paid to him. The female partner sought the appointment of trustees for the sale of property under section 66G Conveyancing Act 1919. The male partner then indicated that he was prepared to consent to an order permitting solicitors to act on the sale rather than trustee because he did not want costs associated with the appointment of trustees for sale incurred.

The law
A co-owner is entitled almost as of right to a section 66G order and the party opposing the sale has the onus of dissuading the court from ordering a trust for sale.

The court acknowledged that while the offer was reasonable, there were not circumstances that made a section 66G order inequitable. The court ordered the appointment of trustees for the following reasons:

  1. The parties remain in dispute and the conflict is significant;
  2. There is no trust between the parties;
  3. Neither party lives near the property;
  4. The appointment of local solicitors might provide logistical problems, whereas the trustees live in the same city as the parties;
  5. There could be difficulties obtaining instructions from two parties who do no get on with each other and potentially a dispute about the sale price;
  6. The difference in cost is not significant;
  7. Trustees for sale are under a duty to sell as expeditiously as possible and to get the best possible price which will avoid undue delay.

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