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26 OCTOBER 2012

Mariam Slade and Yvette Pascoe v Roberta Slade Early in February 2008 Roberta Slade, Mariam Slade and Yvette Pascoe became registered proprietors of Azureacre, a remote idyllic beach property on the Far North Coast of New 10South Wales. Roberta and Mariam are sisters, and hold a two-thirds share as joint tenants. The two-thirds share is held under a tenancy in common with Yvette, who holds the other one-third share. Each of Roberta, Mariam, and Yvette paid one third of the purchase price and the expenditures necessary to carry out the purchase, totalling about $2.7 million. There has never been any close personal relationship between Yvette and either or both the other 15co-owners, such that the Property (Relationships) Act 1984 (NSW) would be applicable, nor is the Act applicable between Roberta and Mariam (eg, see s 5(1) of the Act). However, they are all vegetarians, and all have musical tastes for classical music and for traditional opera, abhorring all other musical forms.

contracting to purchase Azureacre all the co-owners entered into a side contract, whereby each agreed that, in consideration of agreeing to purchase together the property on the terms stated above, each would not before 31 December 2017 except with the consent in writing of all co-owners: (1) seek an order for sale or partition of the property, whether under s 66G of the Conveyancing Act 1919 (NSW) or otherwise; (2) alienate her interest in the 25property to any third person or otherwise dispose of her interest; and (3) do anything that would effect a severance of the joint tenancy between Roberta and Mariam. There were no other provisions in the side contract. Roberta was employed as an executive by a large marketing company in Brisbane until April 302011, when she lost her position because her employer retrenched large numbers of staff after a series of natural disasters in Queensland and shifts in consumer demand led to a substantial loss of business. Roberta could not gain alternative employment at anywhere near her previous salary, and could not pay her numerous debts on time except by borrowing at a fairly high rate of interest by mortgaging her interest in Azureacre, together with a mortgage 35over a new life insurance policy of a value sufficient to cover the loan. Before deciding to take up a loan Roberta had approached Yvette and Mariam in early May 2011 with a request that Azureacre be sold, and the proceeds of sale divided between the three co-owners. Yvette and Mariam refused to agree, in large part because by early May 2011 the value of the property had fallen by 10-15% since the completion of the purchase in February 2008, and at 40the date of the present appeal the value has fallen about 5% since completion. Roberta also requested consideration be given to partitioning the property between the three, but Yvette and Mariam refused to consider this.

Roberta then decided to move to Sydney and live there permanently, so she could obtain well employment. Roberta took out a loan on the terms described above, and gave a mortgage of her interest to Antelope Finance Ltd, together with a mortgage over a new life insurance policy. Antelope was not aware of side contract between the co-owners. As a condition of the loan Roberta was required to complete a form of transfer severing the joint tenancy together with a written authority empowering Antelope to lodge the transfer for registration if it saw


in order to protect its security, and shortly after the commencement of proceedings in the present case Antelope lodged the transfer at the Land Titles Office. The transfer has not been registered, due to an objection by Mariam, and Antelope has agreed that it not be registered pending resolution of the present proceedings.


also entered into an agreement to lease her interest in the property for a fairly high rental until 31 December 2017 to Adam Fus, who is well known to all the co-owners, and to everyone else in the locality. Adam is a professional footballer who plays in a national competition for a team based in a nearby city in Southern Queensland. Adam is well known to have a fondness for large pieces of slightly cooked red meat and for strong beer, and for 60the holding of lively parties after every home game, with each party involving the playing of rap and rock music loudly. After entering into the agreement to lease Adam telephoned Yvette and Mariam to discuss moving in, with Adam also advising that he would have about 20 or so people as guests for a night and a day about every fourth weekend during the football season. Later that same day Yvette and Mariam received a letter from Robertas solicitors, 65advising of the lease and mortgage granted by Roberta, and requesting production of the certificate of title to enable the lease and mortgage to be registered. Two days later Antelope lodged a caveat to protect its interest, and notice of this was sent to each co-owner. Yvette has custody of the certificate of title, and has refused to produce it to enable registration of either the lease or the mortgage.

After Adams telephone call Yvette and Mariam immediately took legal advice, and within a few days they arranged for notice of termination of the side contract to be given to Roberta, and also for the present proceedings to be brought in the NSW Supreme Court, seeking a declaration that Roberta was in breach of the conditions of the side contract between the co75owners, because contrary to the terms of the contract Robertas acts amounted to an alienation of her interest and also a severance of the joint tenancy between Roberta and Mariam, that Yvette and Mariam had validly terminated the side contract for breach of condition, and also seeking an order for sale under s 66G of the Conveyancing Act 1919 (NSW). The notice of termination had also alleged that, in the particular circumstances, 80giving access to Adam and his guests would amount to an ouster of Yvette and Mariam, due to obviously incompatible lifestyles. Before giving notice to Roberta and bringing the proceedings, Yvette and Mariam also gave notice to Adam that his agreement to lease was in breach of the side contract, that the contract took priority over his unregistered lease, that he would not be allowed into possession over Azureacre, and that in any case Yvette and 85Mariam had the right to terminate any license that Adam was likely to grant to party guests. After having granted the lease to Adam, Roberta now opposes any sale or partition of the property under s 66G or otherwise. At the trial of the case in December 2011 before Her Honour Acting Justice Natasha the learned trial judge ruled that she had no jurisdiction to make an order to appoint a trustee for either sale or partition, because the parties had entered into the side contract, that this had not been breached by Robertas lease and mortgage, and that Yvette and Mariam had committed an ouster by advising Adam he could not enter the property with his guests. The values given above were supported by the evidence of expert witnesses called by both the 95plaintiff and the defendants. Judgment with costs was entered against Yvette and Mariam, who now appeal to the NSW Court of Appeal. Roberta had cross-claimed for ouster for the exclusion of Adam and his guests, and Her Honour also awarded damages to Roberta and issued an injunction against Yvette and Mariam, restraining them from preventing Adam and his guests from having access to the property, although a stay on the injunction was given


the resolution of any appeal. In the reasons for judgment Her Honour referred to Callow v Rupcev (2009) NSWCA 148, to P Butt, Land Law, 2010 edition, paragraph [1449], citing State of New South Wales v Koumdjiev (2005) 63 NSWLR 353, and to Butt [1467] ff. Her Honour directed that the transfer severing joint tenancy lodged by Antelope not be registered, subject to Yvette and Mariam bringing fresh proceedings against Antelope to 105resolve the issue within one month of the conclusion of the present case, but that the certificate of title be produced at the Land Titles Office to enable registration of the lease and mortgage granted by Roberta. Her Honour commented that she thought it possible that the effect of Antelope receiving the transfer severing joint tenancy and having it registered would be to sever the joint tenancy.

Team T1 is for the appellants Yvette Pascoe and Mariam Slade, team T2 for the respondent Roberta Slade.

Under the Property Law Moot Rules the moot written submission is designated as group and it is a requirement that a moot team work together reasonably as a team when preparing this. Failure to demonstrably take reasonable steps to work together will be severely penalised: see the Moot Rules for further details. Possible division of responsibility for a joint team of two: (a) issues other than s 66G breach/termination of the side contract, severance and ouster); (b) s 66G, including any necessary consideration of the side contract relevant to s 66G. Other schemes may also be possible. You can consider whether to concede some point, but dont do so too willingly. Choose carefully, as it is possible for poor choices to be held against you. a student does not have an allocated partner: (a) above.



Where two people in an allocated team are given permission by the unit co-ordinator to moot individually instead of in a team (a split): (1) The student with the lowest student ID number: (a) above; (2) the other student: (b) above. Note: a request for a split must be made 130to the unit co-ordinator strictly in accordance with the last section of the Property Law Moot Rules (p10), will only be granted if it is clearly demonstrated that your team is incompatible, and if approved each student in a split team must make a separate written submission. In addition a penalty can be imposed on one or both team members if they cannot demonstrate that they have taken reasonable steps to work together as a team.

Refer to the Moot Rules for the different page lengths for a written submission made by one student rather than a team. Also, each student in a split team or a single person team only has nine minutes for their oral submission, the same as for each student in an un-split team.