plaintiff. Order that trustees Liam Bailey and Christopher John Palmer be appointed and property be vested in them for sale under s 66G; trustees to take an account of mortgage repayments, council rates and...
Key principles
An order for sale under section 66G of the Conveyancing Act 1919 (NSW) should be made where a co-owner seeks release of the value of his or her share and there is no separate...
A co-owner who pays a joint debt (such as mortgage repayments or council rates) in full is prima facie entitled to require contribution from the other co-owner on the equitable...
Payments of insurance premiums do not automatically attract contribution as they are not necessarily joint liabilities; contribution for insurance will be available only if the...
Where monetary adjustments between co-owners are contested or may change before final distribution, the preferable procedure is to appoint trustees for sale, direct them to take...
Issues before the court
Whether the plaintiff is entitled to an order for sale of the co-owned property under s 66G Conveyancing Act 1919 (NSW).
Whether the plaintiff is entitled to contribution from the defendant for mortgage repayments and council rates paid by the plaintiff since 1 January...
Plain English Summary
Two brothers co-own a Helensburgh property. One brother stopped contributing to joint expenses from 2015; the other continued to pay mortgage, rates and insurance. The plaintiff sought a sale under s 66G. The Court ordered sale, appointed trustees, directed them to take an account of mortgage repayments, council rates and insurance premiums paid since 1 January 2015 (with interest), required sale proceeds to be paid into Court with a trustees' report on expenses and remuneration, and deferred final determination of contribution entitlements to after sale. The defendant was ordered to pay the plaintiff's costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,957 words · generated 29/07/2026
What happened
Adam Thomas Blackwell (the plaintiff) and his brother Nathan John Blackwell (the defendant) are 50/50 tenants in common in a semi-rural property at Helensburgh, acquired initially in 2001 and restructured in 2007 when the third brother was bought out (see [1]-[4]). The mortgage was refinanced in the joint names of the plaintiff and defendant with ANZ; the co-owners operated a joint ANZ account into which farm income was paid and from which expenses were discharged (see [4]-[5]).
Whether the plaintiff is entitled to contribution for insurance premiums paid.
How to structure post-sale accounting and payment of any contribution entitlements and trustees' remuneration and expenses.
Cited legislation
1 cited instrument linked from this judgment.
From about 2015 relations deteriorated. The joint account went into overdraft and the defendant ceased making further contributions via the joint account (see [6]). The plaintiff then paid ongoing expenses personally: mortgage repayments (or loan repayments after refinancing and discharge steps effected via payments in 2017), council rates and insurance premiums (see [6]-[8]). The defendant has continued to reside on the property and refused to take steps to have the mortgage formally discharged from title, and a caveat has been lodged by a former solicitor claiming fees (see [8]).
The plaintiff sought equitable relief and proprietary relief early in the proceedings (partnership, common intention constructive trust), but at hearing abandoned those causes and relied on s 66G of the Conveyancing Act 1919 (NSW) for an order appointing trustees for sale and vesting the property for sale (see [13], [14]). Parker J found that s 66G relief was available and that there was nothing in the evidence displacing the plaintiff's entitlement to a sale (see [14]). The only live complexities related to contribution for the payments the plaintiff had made since 1 January 2015, specifically mortgage repayments, council rates and insurance premiums (see [15]-[16]).
Rather than make final monetary adjustments at the interlocutory hearing, the Court appointed trustees for sale, directed them to take an account of respective payments for the three categories with interest, directed that proceeds be paid into Court on completion with a report detailing trustees' expenses and remuneration, and adjourned the matter (Orders 1-3; see [16]-[19]). The defendant was ordered to pay the plaintiff's costs, to be assessed and enforced forthwith (Orders 6-7; see [3]-[4]).
Why the court decided this way
Three principal strands of reasoning drive the decision.
Entitlement to sale under s 66G: Parker J applied the principle, drawn from the Court of Appeal in Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411, that a co-owner seeking to realise the value of his share is entitled to s 66G relief “virtually as of right” unless separate legal or equitable obligations displace that entitlement (see [14]). In this case no such obligation was shown; the relationship had broken down and the defendant did not raise an equitable defence or counterclaim that would justify refusal. The absence of a defence and the factual history (including abusive texts and refusal to cooperate) supported granting the sale order (see [10]-[12], [14]).
Claim to contribution for payments: The Court relied on the equitable doctrine of contribution as explicated in Forgeard v Shanahan (1994) 35 NSWLR 206, where Meagher JA observed that co-owners who are joint debtors (for example on a mortgage or rates) are prima facie entitled to contribution if one pays a joint debt in full (see [19]). Parker J applied that principle to the mortgage repayments and council rates which, on the evidence, were joint liabilities. This gave the plaintiff an entitlement to contribution for those categories (see [16], [19]).
Practical procedure for unresolved monetary questions: Recognising ongoing expenses, likely additional payments before completion, and possible disputes about trustees' remuneration, Parker J took a pragmatic approach. Rather than attempt a piecemeal determination now, the judge directed trustees to take an account of payments and to present that account and their report after sale so that the Court could finally determine contributions and order payment out of sale proceeds if appropriate (see [16]-[18]). This approach prevents multiplicity of applications and allows the final monetary adjustment to be made on complete information.
Insurance was treated differently. Forgeard had held that insurance and pest control payments were maintenance rather than joint debts and so did not attract contribution; Parker J acknowledged that principle but also recognised that insurance payments may, depending on the factual matrix, discharge a joint obligation if the parties had assumed a joint obligation as policyholders or customers to pay the premium. That question was left to be determined by the trustees' accounting and the Court thereafter (see [19], second numbered sub-paragraph, and Orders 2-3).
Costs were awarded to the plaintiff because the defendant’s conduct had made litigation necessary and the plaintiff would have needed to come to Court even if some pleaded equitable bases were not ultimately pressed (see [3]-[4], [11], [13]).
Before and after state of the law
Before:
The law on s 66G was settled that a co-owner seeking sale has a strong entitlement to relief unless displaced by other obligations, as articulated in Ferella [2015] NSWCA 411 (cited at [14]).
The equitable doctrine of contribution between co-owners was established in Forgeard v Shanahan (1994) 35 NSWLR 206 and has been understood to apply to joint debts (e.g. mortgage, rates), but not necessarily to maintenance payments such as insurance unless a joint obligation exists (see [19]).
After:
Blackwell v Blackwell applies and confirms those principles concretely in a factual context where one co-owner ceased contributing and the other continued to meet mortgage repayments, rates and insurance. The decision emphasises a practical procedural template: order sale under s 66G, appoint trustees, direct them to take a full account of payments (mortgage, rates, insurance) with interest, and vest proceeds in Court for final determination of contribution and payment out of proceeds. This procedural posture provides a replicable method for courts dealing with similar fact patterns.
On insurance premiums, Blackwell reiterates Forgeard’s caution but clarifies that insurance may give rise to contribution in cases where the evidence shows a jointly assumed obligation to pay the premium, leaving the resolution to detailed accounting and factual inquiry.
Thus the decision does not alter doctrinal law but exemplifies approach to interplay between s 66G relief, contribution claims and the practical management of contested monetary adjustments between co-owners.
Key passages with plain-English translation
Paragraph 14 (legal entitlement to s 66G relief)
Text: "The co-owner of a property who wishes to have it sold so as to release the value of his or her share is entitled to relief under s 66G virtually as of right."
Plain English: If you own part of property and want to cash out your share, the law gives you a strong right to make the court order the property sold, unless there is some other legal reason not to.
Paragraph 19 (doctrine of contribution)
Text: "If one co-owner pays such a debt in full he is entitled to require the other co-owner to contribute a rateable amount; at least that is the prima facie position."
Plain English: If two people are jointly responsible for a bill (like a mortgage or council rates) and one pays it all, that one can generally ask the other to pay their fair share.
Paragraph 19 (insurance point, quoting Forgeard)
Text: "They cannot be classified either as payments for improvements or payments of debts jointly owing. At most they are payments towards the maintenance of the property, and as such no allowance should be made in respect of them."
Plain English: Payments like insurance premiums are usually maintenance costs, not joint debts, so you normally cannot claim your co-owner must repay you for them, unless you can show the insurance was a joint obligation.
Paragraph 18 (procedural approach)
Text: "I think it is best to leave the final determination ... until after the sale has taken place ... direct the trustees to take an account ... so that the Court can then fix the amount due to the plaintiff..."
Plain English: The judge decided it was more practical to sell the property first, have the trustees list all payments and expenses, and then have the court work out who owes what from the sale proceeds.
What fact patterns trigger this precedent
Blackwell v Blackwell is directly on point where the following constellation of facts exists:
Two (or more) co-owners hold land as tenants in common and one seeks to realise his or her share through sale under s 66G.
There has been a breakdown of the co-ownership relationship with one co-owner refusing to co-operate or otherwise preventing partition, discharge of incumbrances, or resolution.
One co-owner has ceased contributing to joint obligations (mortgage repayments, council rates), while the other has continued to pay.
There are contested monetary claims between co-owners as to who must contribute to payments made since the breakdown (mortgage, rates, possibly insurance).
Practical considerations make it preferable to appoint trustees, sell the property and then account to the Court, rather than resolve all monetary disputes at the interlocutory hearing.
In such patterns, the decision signals courts will readily make a s 66G sale order, recognise equitable contribution for joint debts (mortgage and rates), and require trustees' accounts with post-sale adjudication of monetary entitlements.
How later courts have treated it
At the time of this decision (September 2020) Blackwell v Blackwell is a single Supreme Court of NSW decision and applies established authority rather than creating novel doctrine. It applies Forgeard and Ferella; later courts considering similar factual matrices will likely follow the procedural approach in Blackwell, appoint trustees, direct an accounting, and defer final quantification until after sale, where ongoing or future payments and trustees' remuneration issues complicate immediate finalisation. Practitioners should watch for subsequent appellate decisions that might comment on the approach to insurance premiums and the appropriate granularity of trustees' accounts.
(As this deep dive is generated from the judgment text only, no post-2020 cases are cited here. Users should check subsequent reporting and authority for appellate treatment.)
Still-open questions
Insurance as joint liability: Blackwell leaves open how comprehensively courts should approach the factual inquiry required to determine whether insurance premiums constitute a joint liability. The decision signals that insurance can be a joint debt only if there is evidence of a joint obligation, but it does not prescribe the specific evidence required. Future cases will clarify the evidentiary threshold for treating insurance as a joint debt rather than maintenance.
Timing and quantum of pre-judgment interest: The order directs interest at pre-judgment rates from the date of payment (Order 2). How courts will calculate and apply pre-judgment interest on contribution claims between co-owners, especially where payments and partial reimbursements occur at different times, may require further judicial elaboration.
Trustees' remuneration disputes: Parker J anticipated possible disputes about trustees' expenses and remuneration and arranged for a report to be made after sale. The appropriate standard for assessing trustees' fees in s 66G sales vis-à-vis competing claims for contribution from co-owners remains a practical issue that may require refined guidance.
Costs when equitable claims are raised but not pressed: The plaintiff raised partnership and constructive trust claims but did not press them. The judge awarded costs to the plaintiff. The principles governing costs where parties plead multiple equitable grounds but pursue only some at hearing may be explored further in future decisions to provide predictability.
Interaction with caveats and discharged loans on title: The defendant refused steps to remove a mortgage from title despite repayment, and a caveat by a solicitor existed. The decision does not elaborate on mechanisms for resolving encumbrances pre-sale when a co-owner refuses to cooperate. Future cases may address whether courts will make ancillary orders compelling removal or suspending encumbrances to facilitate sale.
End of deep dive.
Judgment (2 paragraphs)
[1]
Judgment - EX TEMPORE
Revised from transcript; issued 7 September 2020
This case concerns a property at Helensburgh on the southern outskirts of Sydney. The property is co-owned by the plaintiff and the defendant. The plaintiff seeks orders for the property to be sold and the net proceeds divided between the parties.
The plaintiff is Adam Thomas Blackwell and the defendant is Nathan John Blackwell. They are brothers. The property is a semi-rural block of land at Walker Street, Helensburgh. I was told from the Bar Table that it is seven acres, or 2.8 hectares. There is a house on it. There are also demountable buildings, sheds or cottages, and stables. The land also includes paddocks which have been used for horse agistment.
The property was originally bought in 2001 by the plaintiff and the defendant and their brother Heath Blackwell in equal shares. In April 2007 the plaintiff and defendant bought their brother out. This left each of them holding a 50% share in the property as tenants in common. The buy-out was accompanied by a refinance of the loan which had been used to acquire the property initially.
The incoming bank was the Australia and New Zealand Banking Group Limited ("ANZ"). The bank loans were in the joint names of the plaintiff and the defendant, and were secured by a mortgage over the property.
After the buy-out the plaintiff and the defendant established a joint bank account with the ANZ. They carried out farming activities on the property and also leased part of it out. Income which resulted was paid into the joint account. Expenses, including mortgage repayments referable to the property, were paid out of the joint account.
The defendant has lived on the property since about 2008. In 2015 the relationship between the plaintiff and the defendant began to break down. The joint account went into overdraft in May 2015. The defendant has not contributed any further funds to the payment of expenses associated with the property through the joint account since that time. To the extent that the expenses have not been covered by income from the property, the plaintiff has made the necessary payments from his own funds.
In 2017 the plaintiff procured the defendant's agreement to repay the loan and discharge the mortgage. At that stage the outstanding balance under the joint loan was about $480,000. The plaintiff paid half of this and the defendant the other half. The plaintiff's half share came from a payment made by a company of which he is a director, the defendant's came from a payment made by a family trust of which he is a beneficiary.
Since that time the plaintiff has continued to pay for council rates and for insurance. The defendant has refused to take the steps necessary to have the mortgage taken off the title, so that it remains on the title even though the loan has been repaid. A caveat has also been lodged on the title by a former solicitor for fees allegedly owing to the solicitor by the defendant.
From about 2016 onwards further disputes arose between the plaintiff and the defendant, concerning the way in which the property was being used. According to the plaintiff, building materials and waste products were being stored there, in violation of the development approval governing the property. This led to difficulties with the local council.
The plaintiff first formally raised complaints with his brother in the form of solicitors' letters, which were sent in 2016. The plaintiff offered to buy his brother's half share of the property at a valuation to be determined by an independent valuer. These offers were rebuffed. In September 2019 the defendant sent the plaintiff some abusive and threatening text messages. This marked the final breakdown of their relationship.
This case began in January 2020. The plaintiff commenced proceedings by summons, but was subsequently directed to a file a statement of claim. Solicitors initially appeared on behalf of the defendant. Subsequently they withdrew from the proceedings. No defence has been filed.
When these proceedings were fixed for hearing the Registrar made a specific direction that the defendant be notified of the date and time for the hearing. The evidence before me shows that this direction was complied with, and that the defendant was aware that the hearing was taking place today. Indeed, shortly before the hearing was due to commence an email was received from the defendant's domestic partner. She said that the defendant had developed a respiratory condition and needed to be tested for Covid 19. She offered to come to Sydney to verify this. In response I had my Associate send a message, advising her that in the circumstances the Court would be prepared to allow her to participate in the hearing by telephone. But she did not take this up.
Initially counsel for the plaintiff sought equitable relief, including proprietary relief, based on there having been a partnership between the plaintiff and the defendant, or alternatively, on the basis of a common intention constructive trust. Ultimately these claims were not pressed, and counsel contented himself with seeking relief under the Conveyancing Act 1919 (NSW), s 66G.
The co-owner of a property who wishes to have it sold so as to release the value of his or her share is entitled to relief under s 66G virtually as of right: Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411 at [36]. That entitlement may be displaced by some separate legal or equitable obligations, but there is nothing in the evidence before me which would suggest that there is any such restraint on the plaintiff in this case. I am satisfied that the plaintiff is entitled to a s 66G order.
The only complexity arises out of the payments the plaintiff has made since his brother stopped paying for a half share of the expenses associated with the property in 2015. At the hearing before me counsel for the plaintiff identified three categories of expense which, so he contended, gave rise to an entitlement to contributions from the defendant. These were, first, mortgage payments, second, council rates, and third, insurance premiums.
The evidence establishes clearly that the plaintiff is entitled to some allowance for at least some of these categories of expenditure. A practical issue arises as to how to deal with that.
I was presented with evidence of payments and supporting calculations, but it seems at least possible that further contributions will be necessary before the sale of the property is completed, and I assume that those will come from the plaintiff, as the trustees for sale will not have any ready funds. It will also be necessary in due course to give both parties an opportunity to consider the costs which the trustees incur and the remuneration which they seek and to resolve any disputes which may arise in that regard.
In these circumstances, I think it is best to leave the final determination of how much the plaintiff is entitled to by way of contribution until after the sale has taken place, so that all of the monetary issues can be dealt with at one time. What I will do is to direct the trustees to take an account of the relevant expenses, so that it can be presented to the Court when the sale has been completed, and the Court can then fix the amount due to the plaintiff and if appropriate order that it be paid out of the proceeds.
The scope of a co-owner's entitlement to contribution to expenses of the type under consideration in these proceedings was dealt with by the Court of Appeal in Forgeard v Shanahan (1994) 35 NSWLR 206. Meagher JA said (at 224):
Apart from questions of improvements and occupation fees, which arise from the relationship of co-owners, it will also often happen that co-owners are joint debtors (for example, on a mortgage, or because rates are levied on the property). If one co-owner pays such a debt in full he is entitled to require the other co-owner to contribute a rateable amount; at least that is the prima facie position. In this regard the parties' rights arise from the equitable doctrine of contribution, not from the law of property (see Gibbs CJ in Muschinski v Dodds (1985) 160 CLR 583 at 596-597), that is, they would apply in the case of all joint debts even if the debtors owned no property.
On the facts of the case, one of the co-owners had paid for a range of expenses associated with the property. Meagher JA stated that the trial judge had been correct to make an allowance her favour for half of the mortgage payments and council rates. But he continued (at 225):
[The trial judge] made no direct allowance for either the insurance or the pest control; and, again, I do not see why he should. They cannot be classified either as payments for improvements or payments of debts jointly owing. At most they are payments towards the maintenance of the property, and as such no allowance should be made in respect of them.
On this authority the plaintiff is clearly entitled to contribution for excess payments made in categories one and two, that is, mortgage repayments and council rates. Meagher JA did not allow contribution towards insurance. But as I read the decision that was because it did not represent a joint liability.
The evidence suggests that at least some of the insurance payments made by the plaintiff in this case may have been payments of joint liabilities. Of course a joint liability would not arise simply because insurance policy covered the interests of both the plaintiff and defendants as proprietors. But if it can be shown that the plaintiff and the defendant assumed a joint obligation as customers to pay for the insurance in question, then I think payments made by the plaintiff to discharge that joint liability would give rise to a right of contribution on the broad principle recognised in Forgeard v Shanahan. This question can be determined in due course by the trustees for sale when they take the account to which I have referred.
As to the costs of the proceedings, the evidence which I have recounted shows that the defendant's attitude required the plaintiff to take legal action. Some of the bases on which the plaintiff claimed release were not pressed, but it is perfectly clear that the plaintiff would have had to come to court even if those bases for relief had not been articulated. I will therefore make an order that the defendant pay the plaintiff's costs, rather than simply ordering that the costs come out of the sale of the property.
The sale may take some time and if there are any further proceedings they will involve distinct issues from the issues which have been debated today. I will therefore order that the plaintiff's costs may be assessed and enforced forthwith.
The orders of the Court are:
I order that:
a. pursuant to section 66G of the Conveyancing Act 1919 (NSW) Liam Bailey and Christopher John Palmer of O'Brien Palmer ("the Trustees") be appointed as trustees for the sale of the Property; and
b. the Property be vested in the Trustees subject to any incumbrances affecting the entirety of the lands but free from incumbrances (if any) affecting the undivided share or shares therein to be held by the Trustees upon statutory trust for sale under Division 6 of Part 4 of the Conveyancing Act 1919 (NSW).
I direct that the Trustees take an account of the respective payments made by the plaintiff and the defendant since 1 January 2015 by way of discharge of joint liabilities for:
mortgage repayments;
council rates; and
insurance premiums,
together with interest at pre-judgment rates from the date of payment.
I direct that on completion of the sale of the property the Trustees pay the proceeds into Court and prepare a report to the Court detailing their expenses and the remuneration they seek, and including the account referred to in Order 2.
I grant the parties and the Trustees liberty to apply on 3 days' notice.
I adjourn the proceedings to the Registrar's List on 2 March 2021.
I order that the defendant pay the costs of the proceedings to date.
I direct that the costs may be assessed and made enforceable forthwith.
[2]
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Decision last updated: 07 September 2020
Order that trustees Liam Bailey and Christopher John Palmer be appointed and property be vested in them for sale under s 66G; trustees to take an account of mortgage repayments, council rates and insurance premiums paid by the parties since 1 January 2015 with pre-judgment interest; on completion trustees to pay proceeds into Court and report on expenses and remuneration; parties and trustees given liberty to apply; matter adjourned to Registrar's List; defendant ordered to pay plaintiff's costs, to be assessed and enforced forthwith (Orders 1-7; see [18]-[19], Orders).