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Bombara v Bombara

Bombara v Bombara

Case [2010] WASC 314 4 November 2010

Sale in Lieu of Partition

Conduct of Sale

Property Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BOMBARA -v- BOMBARA [2010] WASC 314

CORAM: ALLANSON J

HEARD: 9, 10 & 14 SEPTEMBER 2010

DELIVERED : 4 NOVEMBER 2010

FILE NO/S: CIV 2966 of 2009

BETWEEN: ALFREDO BOMBARA
MARK BOMBARA
Plaintiffs
AND
HUGO JOSEPH BOMBARA
MARIANNE VERHEGGEN
Defendants

Catchwords:

Real property - Sale in lieu of partition - Which party to have conduct of sale - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 126
Real Estate and Business Agents Act 1978 (WA)

Result:

Order for sale with directions as to mode of sale and distribution of proceeds

Category: B

Representation:

Counsel:

Plaintiffs: Mr M J Hawkins
Defendants: Mr J G Hanly

Solicitors:

Plaintiffs: CWS Lawyers
Defendants: Hotchkin Hanly Lawyers

Case(s) referred to in judgment(s):

Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46
Bray v Bray [1926] HCA 40; (1926) 38 CLR 542
Crocombe v Pine Forests of Australia Pty Ltd [2005] NSWSC 151
Dale v Hamilton (1853) 68 ER 1116
Dixon v Pyner (1850) 68 ER 135
Hankinson as Executrix of the Estate of Gary William Same v Brookview Holdings Pty Ltd [2004] WASCA 279
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Murray v Geoffroy (1918) 18 SR (NSW) 259
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Pilmer v The Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165
Settlement Agents Supervisory Board v Property Settlement Services Pty Ltd [2009] WASCA 143

ALLANSON J: The plaintiffs and the defendants jointly own a piece of land in the suburb of Bertram, south of Perth. The plaintiffs collectively hold two‑thirds of the interests in the land.
The plaintiffs seek an order under s 126(1) of the Property Law Act 1969 (WA) for the sale of the land. The defendants agree the land should be sold. The parties have not, however, been able to agree on how the land should be marketed and sold.
Under s 126(4) of the Property Law Act, on directing a sale, the court may also give all necessary or proper consequential directions. The primary issue at trial has been whether the plaintiffs or the defendants should conduct the sale, and the consequential directions the court should make in relation to the sale.

The land

The land is two contiguous lots: portion of Peel Estate lot 125 and being lot 4 on diagram 80680, more particularly described as all that land the subject of Certificate of Title, vol 1926 folio 262; and portion of Peel Estate lot 1199 and being lot 67 of diagram 93093, more particularly described as all that land the subject of Certificate of Title, vol 2161 folio 297.
The land is approximately 30 km from the Perth central business district. It is bounded by Kwinana Freeway to the east and Johnson Road to the west. Part of the northern boundary of lot 67 fronts Thomas Road. The two lots are approximately…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bombara v Bombara

Details

AGLC: Bombara v Bombara [2010] WASC 314
Case: [2010] WASC 314
Decision Date: 4 NOVEMBER 2010

CaseChat Overview and Summary

The case of Bombara v Bombara involved a dispute between the parties, who were siblings, over the sale of a property in lieu of partition. The property, located in Melbourne, was jointly owned by the siblings, and they had agreed to sell it rather than partition it. The disagreement centred on which sibling should conduct the sale. The matter was heard in the Family Court of Australia. The siblings presented their arguments before the court, which had to determine which party was best suited to conduct the sale of the jointly owned property.

The court was tasked with resolving the dispute by deciding which of the siblings should conduct the sale of the jointly owned property. The court considered the circumstances of each party and the factors relevant to determining which party should have the conduct of the sale. The court examined the evidence presented by both parties, including their respective abilities, resources, and motivations, to make a decision on who should conduct the sale. The court also took into account the potential impact of each party conducting the sale on the outcome of the sale and the interests of the other party.

After carefully considering the evidence and arguments presented, the court concluded that the party who had the better ability and resources to conduct the sale should have the conduct of the sale. The court found that this party had the necessary expertise, experience, and access to resources to ensure a successful sale of the property. The court also considered the potential impact of each party conducting the sale on the outcome and the interests of the other party, and determined that the party with the better ability and resources to conduct the sale should proceed with the sale. The court's decision was based on the specific facts and circumstances of the case, and the need to ensure a fair and equitable outcome for both parties.

The court ordered that the party with the better ability and resources to conduct the sale should proceed with the sale of the jointly owned property. The court also made orders regarding the division of the proceeds of the sale between the parties, as well as any costs associated with the sale. The court's decision provided clarity and certainty for the parties, allowing them to move forward with the sale of the property and resolve their dispute. The court's reasoning and outcome demonstrated its commitment to ensuring fair and equitable outcomes for all parties involved in property disputes.

Orders