Written by The recent case of Eva Joy Ambrus v Lee Ellen Buchanan [2022] NSWSC 1628considered an application for the appointment of trustees pursuant to section 66G of the Conveyancing Act 1919 (NSW).
The land in question was owned by 13 co-owners as tenants in common and the plaintiff held a 1/56th share. The plaintiff sought an order under s 66G appointing trustees to hold the land on statutory trust for sale, but the 12 defendants opposed the order, contending that the plaintiff be precluded from applying for such an order on the basis of fiduciary duties, and promissory estoppel and or on the basis that the plaintiff would receive an unconscionable benefit if the land were sold by trustees and the net sale proceeds distributed between co-owners in accordance with their respective interests in the land.
The Court conceded that the grounds on which the Court will ordinarily decline to make an order under s 66G are limited, such as where the order would be inconsistent with a proprietary right, or a contractual or fiduciary obligation or equitable estoppel against the application. However, mere hardship or unfairness is not a basis to refuse the application. As there was no other basis for refusal, the order was made to appoint trustees for sale.
Furthermore, the Court held that when a tenant in common applies for an order under s 66G, it is irrelevant whether they own a majority interest, an equal interest, or a minority interest in the property in question. The order to appoint trustees for sale was ordered even though the defendants who owned 98.21 per cent of the land opposed the sale.