Boyce v Duong - [2002] VSC 336

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 5225 of 2002

TERENCE JAMES BOYCE	Plaintiff
v
THANH TAM DUONG	Defendant

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2002
DATE OF JUDGMENT:	14 August 2002
CASE MAY BE CITED AS:	Boyce v Duong
MEDIUM NEUTRAL CITATION:	[2002] VSC 336

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Real property – sale in lieu of partition – standing to bring proceedings – defences – whether plaintiff entitled to be registered at time of institution of proceeding and later registered has standing to bring proceeding – whether hardship a defence – Property Law Act 1958, ss. 90, 137, 221-223; Transfer of Land Act 1958, s. 34.

Practice and procedure – whether action for sale in lieu of partition to be instituted by writ or originating motion - Supreme Court (General Civil Procedure) Rules 1996, Rules 405, 2.01 and 2.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.S. Dickenson	Falcone & Adams
For the Defendant	Mr B. Carew	V.N. Lawyers

HIS HONOUR:

This is an appeal from a decision of Master Wheeler given on 5 August this year, to refuse the plaintiff's application for summary judgment for sale in lieu of partition of property situate at 133 Foote Street, Templestowe and being the land comprised in Certificate of Title Vol. 8845 Folio 862.

Shortly, the facts are that the property was originally owned by the defendant and her husband as joint tenants and, following other proceedings, the defendant's husband's interest in the land was sold by the Sheriff to the plaintiff. As a result, the plaintiff and the defendant became tenants in common in equal shares in the land. At the time at which this proceeding was instituted the plaintiff had lodged for registration but had not been registered as proprietor of his share as tenant in common, but he has since been registered and, pursuant to s. 34 of the Transfer of Land Act 1958, he is to be taken as having been registered from the date on which the instrument of transfer was lodged for registration.

The Master refused the application for summary judgment for two reasons: first, he held that, despite the provisions of s. 34 of the Transfer of Land Act, it was a "nice question whether on an application for judgment in default of defence (he could) receive evidence as to the precise state of the plaintiff in the statement of claim, which simply read that he was 'registered or entitled to be registered' "; and secondly, he held that because the proceeding had been instituted by writ, when in the Master's view it was required to be instituted by originating motion, it was appropriate that the proceeding should be stayed forever.

Before me, further defences were advanced of hardship and that a third party, the identity of whom was unspecified, may institute an action against the plaintiff at some time in the future.

In my opinion there should be summary judgment. I do…

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 Boyce v Duong

Details

AGLC: Boyce v Duong [2002] VSC 336
Case: [2002] VSC 336
Decision Date: 14 August 2002

CaseChat Overview and Summary

In the matter of Boyce v Duong, the parties involved were Boyce, the plaintiff, and Duong, the defendant. The dispute centred around the sale of a property in lieu of partition under the Property Law Act 1958. The case was heard in the Supreme Court of Victoria, with the plaintiff seeking to be registered as the owner of the property and to have it sold in lieu of partition.

The legal issues the court had to resolve included whether the plaintiff had standing to bring the proceeding, given that he had not been registered as the owner at the time of institution of the proceeding but was later registered. Another issue was whether the hardship caused to the defendant could be considered a defence to the plaintiff's claim. The court also needed to determine whether the action for sale in lieu of partition should be instituted by writ or originating motion, in accordance with the Supreme Court (General Civil Procedure) Rules 1996.

The court found that the plaintiff had standing to bring the proceeding despite not being registered at the time of institution, as he was later registered. The court ruled that the hardship to the defendant was not a valid defence to the plaintiff's claim. Furthermore, the court determined that the action for sale in lieu of partition should be instituted by originating motion, rather than writ, as per the Supreme Court (General Civil Procedure) Rules 1996. The final orders of the court were that the property be sold in lieu of partition, with the proceeds to be distributed according to the court's directions.

Orders