Boyce v Duong
[2002] VSC 336
•14 August 2002
| 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 not consider that there is any substance in the point that the plaintiff was not registered as proprietor of his interest in the land at the time of the institution of the proceeding. It is in my view sufficient that he be entitled to be registered at the time of institution of the proceeding, or indeed at the time of judgment but, in any event, he has been registered and, by reason of s. 34, he is to be taken as having been registered from a point in time before the institution of the proceeding.
Equally, I do not consider that there is any substance in the point about the process chosen for the institution of the proceeding. It is true that Rule 4.05 requires that where by or under any Act an application is authorised to be made to the court, the application is to be made by originating motion, but I consider that when the Rule refers to "an application" it contemplates the sorts of applications which are provided for as such by provisions such as s. 137 of the Property Law Act, and it is not directed at the sorts of proceedings which are to be brought by way of action (for which ss. 221 to 223 provide).
Even if it were not so, the fact that a proceeding such as this has been instituted by writ, when an originating motion is said to have been the appropriate process, does not ordinarily mean that the proceeding should be brought to an end or forever stayed. Rules 2.01 and 2.04 are adequate to enable dispensation from compliance with any requirements of the Rules and where, as here, it is not suggested that the use of a writ as opposed to an originating motion has caused any prejudice, it would be appropriate to dispense with the requirements.
Although not pressed before me, I should say too that I do not consider the hardship defence to be tenable. Hardship is not a defence to an action for partition or sale in lieu of partition, even if it is relevant to the question of whether it is appropriate to order partition rather than sale: Schnytzer v Wielunski[1] and Bray v Bray[2] to which it refers.
[1][1978] VR 418 at 428.
[2](1926) 38 CLR 542.
Finally, I cannot see any substance in the suggested defence based upon the suspicion that at some time in the future some unspecified form of proceeding might be brought by an unspecified third party against the plaintiff.
In those circumstances I propose to grant the plaintiff the orders that it seeks.
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(Discussion ensued re orders.)
HIS HONOUR: I will make orders in terms of paragraphs 1, 2 and 3. In paragraph 4 I will provide that the reserve price at auction be set by agreement between the plaintiff and the defendant and failing agreement by the licensed estate agent appointed pursuant to order 2. I will make an order in terms of paragraphs 5 and the second 5 which I will re-number as 6. I will make an order that the costs of the sale of the property be deducted from the sale proceeds prior to distribution, which will be order No. 7. I will make order No. 8, which will be the old 7, that there be power for the person appointed to sell with sale even if vacant possession has not been obtained. 9 will be the old 8. I will make a further order that the defendant pay the plaintiff's costs of the proceeding, and I will grant to the defendant a certificate pursuant to s. 4 of the Appeal Costs Act.
MR CAREW: Your Honour, just for the purpose of clarity, that order that the defendant pay the plaintiff's costs of the proceeding, is that to be from the distribution - - - ?
HIS HONOUR: No, it is not. The only thing to come from the distribution is the costs of sale to be deducted prior to distribution.
MR CAREW: As it pleases Your Honour.
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(Boyce v Duong)
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