Co-ownership of property works well when all owners agree. When they do not — and particularly when one owner refuses to sell a property that cannot practically be retained — the NSW Supreme Court provides a mechanism that most co-owners do not know exists until they need it.
Section 66G of the Conveyancing Act 1919 (NSW) allows any co-owner of property to apply to the NSW Supreme Court for an order appointing statutory trustees for sale. The trustees, once appointed, have the authority to sell the property over the objection of any co-owner who refuses to cooperate. The order cuts through the stalemate. It is one of the more consequential remedies available in NSW property law, and it is used with some frequency — most often in the context of a separation, a deceased estate, or a family arrangement that has broken down.
Who can apply, and when
Any person who holds an interest in land as a co-owner — whether as joint tenant or as tenant in common — can apply for a section 66G order. There is no requirement that the applicant hold a majority interest, that they have made the majority of contributions to the property, or that they have tried to resolve the matter for any particular length of time before bringing the application.
The most common circumstances in which the application arises are these. Two or more people purchase property together — as a couple, as siblings, as investment partners — and the relationship that supported the co-ownership ends. One owner wants to sell; the other does not, or will not engage. The property cannot be sold without both owners’ cooperation because the title is held jointly. The co-owner who wants to realise their interest has no mechanism to compel a sale except through the court.
A deceased estate is another common source. Where property was held jointly with the deceased and passed to the surviving owner by right of survivorship, the estate may have a claim on those proceeds through the notional estate provisions under the Succession Act 2006 (NSW). But where property is held as tenancy in common and passes to the estate, the executor may find themselves co-owning the property with beneficiaries or other parties who cannot agree on whether to sell. A section 66G application by the executor or by a co-owner is the mechanism for resolving that disagreement.
What the court does
When a section 66G application is made, the court appoints two trustees — typically the parties’ respective solicitors or an independent trustee — with authority to sell the property and divide the proceeds. The court’s discretion to refuse the appointment is narrow. Section 66G is not a discretionary remedy in the ordinary sense; it is closer to a statutory right. If the applicant has a co-ownership interest, the court will generally make the order unless one of the limited grounds for refusal is established.
The narrow grounds on which the court may refuse include genuine hardship to one of the parties — not merely inconvenience or preference, but hardship of sufficient weight to displace an otherwise available statutory remedy. A co-owner who will lose their home with nowhere to go is in a different position from a co-owner who simply prefers not to sell. The distinction matters, and courts have examined it in detail. A contractual arrangement between the parties that restricted their right to seek a sale — an express agreement not to seek partition, for instance — may also provide a basis for refusal. Fraud or other unconscionable conduct is relevant. These grounds are limited, and the applicant who has a legitimate co-ownership interest and a genuine need to realise it will usually succeed.
The court’s discretion to refuse a section 66G order is narrow — and most matters settle once the application is filed, because the outcome of a contested hearing is predictable.
Why most matters settle
The filing of a section 66G application often produces a resolution without the need for a hearing. The reason is straightforward: once the application is on foot, the co-owner who was resisting the sale is confronted with a predictable outcome. If the court makes the order — and in most cases it will — the property will be sold by trustees over their objection, and they will bear their share of the costs of the application in addition. The alternative is to negotiate a sale on terms they have some influence over, at a time they can control, without the additional cost of resisting the application to hearing.
That dynamic is the reason experienced practitioners use the section 66G application as a prompt for negotiation, not only as a litigated remedy. The application is filed; the responding party’s position changes once the legal reality is in front of them; the parties negotiate a sale — agreed price, agreed timing, agreed division of the proceeds — and the application is resolved by consent or withdrawn on the basis of the sale proceeding.
This is not always the outcome. Where the dispute involves not just the sale but the division of proceeds — where one party claims they are entitled to more than their registered share, because of contributions made, costs paid, or arrangements relied upon — the settlement is more complex. The section 66G application deals with the sale; the underlying dispute about entitlement may need to be resolved separately, in equity proceedings, or as part of a consent arrangement that the court is asked to endorse.
Costs and proceeds
The default position under section 66G is that the costs of the application and the trustees’ costs come out of the proceeds of sale before the balance is divided. Neither party need find funds for legal costs upfront, because those costs are secured against the property. This is a significant feature of the jurisdiction for co-owners who want to realise their interest but cannot fund contested litigation out of their own resources.
Where one party has resisted the application without adequate grounds, the court may order that party to bear a disproportionate share of the costs. The costs are not always divided equally from the proceeds; they can be adjusted to reflect the conduct of the parties. A co-owner who engages directly and constructively with the sale process, and who does not take technical points for the purpose of delay, is in a better position on costs than one who resists throughout.
The connection to family law and estate matters
Section 66G applications do not arise in isolation. The firm’s experience is that almost every application we see is connected to one of three other matters: a separation, a deceased estate, or a granny flat arrangement that has broken down.
In a separation context, the family home may be held jointly and the property settlement may not yet be finalised. Where one party has vacated the property and the other refuses to cooperate with a sale, a section 66G application may be necessary to compel the sale while the property settlement proceeds in the Federal Circuit and Family Court of Australia. In those circumstances the two proceedings need to be managed together, because the proceeds of the section 66G sale will typically be held pending the outcome of the property settlement.
In an estate context, the interplay between the section 66G application and the Family Provision claim, or between the application and the administration of the estate, requires a lawyer who understands both jurisdictions. A co-owner bringing a section 66G application in connection with a deceased estate may need to address simultaneously whether any Family Provision claim has been, or is likely to be, made against the estate, and whether the proceeds of any sale should be held pending the outcome of that claim.
In a granny flat context, the section 66G application may be the mechanism through which an older person who contributed funds to a property seeks to realise their interest after the arrangement has broken down. That application intersects with the question of what the arrangement provided for — which comes back directly to whether a proper granny flat agreement was in place at the outset.
What this means for you
Co-ownership of property without a clear exit mechanism is a structural risk that many people do not recognise until it crystallises. Where a co-owner refuses to sell and negotiation has failed, section 66G of the Conveyancing Act 1919 (NSW) provides a route to resolution that does not require the other owner’s cooperation. The application is technical in form but the outcome — appointment of trustees for sale — is largely predictable where the applicant has a genuine co-ownership interest and the grounds for refusal are not established. If you are in a co-ownership position that has become unworkable, or if you are an executor dealing with co-owned property in a deceased estate, the section 66G jurisdiction is worth understanding before positions harden.
If you are dealing with a co-ownership dispute and would like to speak with one of our experienced lawyers, make an enquiry.