Opposition of other tenant in common to sale-Right of plaintiff to order for sale- Costs-Partition Act 1900 (N.S.W.) (No. 24 of 1900), secs. 4, 17, 18.

Where by a suit under the Partition Act 1900 (N.S.W.) the plaintiff, one of two tenants in common, asks for a sale of the land and the defendant, the other tenant in common, does not ask for a partition but merely opposes a sale, the plaintiff is entitled as a matter of right to an order for sale.

Under sec. 18 of the Partition Act 1900 the Supreme Court of New South Wales may in its discretion order the defendant in such a suit to pay the costs of the plaintiff SO far as they have been increased by the hearing of issues of fact raised by the defendant as to whether the time is opportune for a sale.

Decision of the Supreme Court of New South Wales (Davidson A.J.) affirmed.

APPEAL from the Supreme Court of New South Wales.

By an indenture of marriage settlement dated 14th June 1854, and made between Thomas Bray, Charlotte Squire Bray (his intended wife) and certain trustees, a parcel of land in Pitt Street, Sydney, was conveyed by Charlotte Squire Bray to the trustees upon trust (inter alia) after the death of Charlotte Squire Bray for such one or more of her children and in such shares as she should by deed or will appoint. The intended marriage took place on 29th June

38 CLR 543

1854. By her will dated 1st August 1911 Mrs. Bray devised the parcel of land to the use of her trustees upon trust for her sons John Bray and James Bray in equal shares. By a codicil dated 7th September 1915 Mrs. Bray appointed the Permanent Trustee Co. of New South Wales executor and trustee of her will. died on 16th July 1924, and her sons John Bray and James Bray survived her. Probate of her will was granted to the Company on 21st November 1924. On 10th October 1924 the Company was also appointed sole trustee of the indenture of marriage settlement. The parcel of land in Pitt Street had a frontage of 24 ft. 11 in. to that street and on it was erected a brick building of three storeys which was divided by wooden partitions into two shops, one having a frontage of 12 ft. 11 in. and a depth of 129 ft. and the other a frontage of 12 ft. and a depth of 80 ft. The building had been erected for about 45 years.

A suit was brought in the Supreme Court in its equitable juris- diction by John Bray against James Bray and the Company, in which the plaintiff alleged that the property could not be suitably or profitably divided that it was in the best interests of…

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 Bray v Bray

Details

AGLC: Bray v Bray [1926] HCA 40
Case: [1926] HCA 40
Decision Date: 8 November 1926

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales concerning the sale of jointly owned land. The plaintiff, John Bray, one of two tenants in common, sought an order for the sale of a property in Pitt Street, Sydney, arguing it was in the best interests of both co-owners and that the other tenant in common, James Bray, refused to agree to a sale. The defendant, James Bray, admitted his refusal to agree to a sale and contended that a sale at that time would be injurious to their interests, but he did not seek a partition of the property.

The central legal issue before the High Court was the interpretation of section 4 of the *Partition Act 1900* (N.S.W.). Specifically, the court had to determine whether a plaintiff, who is a tenant in common and requests a sale of the property instead of a partition, is entitled to an order for sale as a matter of right, even if the other tenant in common opposes the sale but does not seek a partition. A secondary issue concerned the court's discretion under section 18 of the Act to order a defendant to pay the plaintiff's costs, particularly those increased by the hearing of factual issues raised by the defendant regarding the opportune timing of a sale.

The High Court, affirming the decision of Davidson A.J., held that under section 4 of the *Partition Act 1900*, where one tenant in common requests a sale and the other tenant in common does not seek a partition but merely opposes the sale, the plaintiff is entitled to an order for sale as a matter of right, unless good reason to the contrary is shown. The court reasoned that the Act provides a sale as an alternative remedy to partition, and the onus is on the party opposing the sale to demonstrate that partition would be a better course. Regarding costs, the court found that section 18 grants the Supreme Court discretion to order a defendant to pay costs incurred due to factual issues raised by them, and that the lower court had exercised this discretion appropriately.

Consequently, the appeal was dismissed. The court upheld the order for the sale of the property and the direction that the defendant, James Bray, should pay the plaintiff's costs insofar as they were increased by the hearing of the factual issues he had raised.

Orders