When co-owners are in a dispute over the sale of a jointly owned property, section 66G Conveyancing Act 1919 (NSW) has proven to be a beneficial and increasingly popular property management tool as it provides for an impartial sale through a Court appointed Trustee. In this article we look at how s 66G operates as a legal mechanism in family law and other property disputes, sharing our insights on recent cases, and what co-owners need to know before making an application.
Co-ownership is where property is owned by two or more parties (e.g., married couple or de-facto partners), which entitles them to possess the property at the same time. The common forms of co-ownership recognised in Australia are joint tenancy or tenancy in common. Co-ownership disputes arise where co-owners disagree as to whether property commonly held should be sold or how they are to be sold.
Section 66G provides a legal mechanism for resolving co-ownership disputes by application to the Supreme Court. Under s 66G, a co-owner of property can apply to the Court to “appoint trustees over the property to hold the property on statutory trust for sale or partition.” Section 66G has broad application such that the Court may compel a party to agree to the sale even when they object. However, the provision does not apply to chattels.
The Court’s power under s 66G is discretionary. This means that the Court will hear each application on a case-by-case basis. As a general rule however, an order will be made unless it would be inequitable to do so. Inequitableness is generally established if the order would be inconsistent with a proprietary right, or a contractual or fiduciary obligation. For example, in the case of Ngatoa v Ford, the court refused a s 66G application on the inequitable ground in circumstances where a contract between the parties limited their ability to dispose of their interests in the property. Capolingua v Da Silva was another instance where the Court refused s 66G relief as the parties had signed a deed specifying they would not seek to exercise rights of sale under the provision unless the property had been marketed “conscientiously” for a period of one year. In this instance, the s 66G application was adjourned to allow the condition to be satisfied.
Establishing that an order would be inequitable entails a high evidentiary burden. Indeed, mere hardship or unfairness is an insufficient basis of refusing the application. The case of Myers v Clark puts this into context. The case concerned two properties jointly owned by Mr Clark and Ms Myers who were a divorced couple. The couple had not sought property orders during their family law proceedings. Ms Myers made a s 66G application for an order of sale to which Mr Clarke responded saying it would be ‘unconscionable’ because of the financial impact on him. Mr Clarke had made a greater financial contribution as he had been making all the mortgage requirements. However, Mr Clark was also found to have improperly used the funds from the mortgage account. The Court granted the application and made an order that a trustee be appointed for sale of both properties.
Our expertise and experience
Levi Consulting has extensive expertise and industry connections to support co-owners whose home or business property is in dispute. We accept appointments and have experience as trustees for the sale or partition of land or property under s 66G (and also, as receivers). This often results in a better outcome, and the mitigation of disputes between the co-owners.
Here are some of the recent cases where Levi Consulting was called upon as trustees under s 66G
Levi and Samakeh had been appointed as trustee for sale of land and building (3 residential flats, 3 retail shops) in Queanbeyan NSW under s 66G. The dispute arose from lack of consensus between family members on whether the properties should be sold.
Upon appointment we visited the premises and liaised with the parties in dispute as well as agents to obtain independent valuations of the property and strategy to conduct a sale campaign. This led us to determine that it will lead to the best outcome if certain defendants vacate the premises. The defendants brought proceedings in the NSW Civil and Administrative Tribunal. We quickly achieved a commercial settlement. The property was subsequently sold by auction.
In another matter, Levi and Solomons were appointed under s 66G as trustee for sale of property under a deceased’s estate in Homebush NSW.
Outside s 66G appointments, Levi’s experience in property matters includes acting as receiver of property under disputed partnerships. Recently, Levi accepted Court-appointment as receiver over assets of two contested partnerships including land, buildings and a boarding house in Wyong, North Albury, Broken Hill and South Albury. Levi quickly entered and took possession of the properties. Despite difficulties arising from COVID-19 particularly in connection with the boarding house, Levi liaised with stakeholders, agents and lawyers to determine and investigate stakeholder issues, and develop and implement a sale strategy consistent with Court Orders.
Levi Consulting can help co-owners of property resolve sale of property disputes. We accept appointments and have experience as both trustees and as receivers. To get in touch to find out more.
 Ngatoa v Ford (1990) 19 NSWLR 72 at 77 per Needham J
 Tory v Tory  NSWSC 1078 White J at 
 Ngatoa v Ford (1990) 19 NSWLR 72
 Capolingua v Da Silva  NSWSC 1212
 Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068
 Myers v Clark (2018) NSWSC 1029