Brown v Toubia
[2024] WASC 107
•4 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BROWN -v- TOUBIA [2024] WASC 107
CORAM: MASTER RUSSELL
HEARD: 28 MARCH 2024 & ON THE PAPERS
DELIVERED : 4 APRIL 2024
FILE NO/S: CIV 2445 of 2023
BETWEEN: VIVIENE LEA BROWN
Plaintiff
AND
CHERINE TOUBIA
Defendant
Catchwords:
Practice and procedure - Ex parte motion for judgment in default of appearance - Application for order for sale pursuant to s 126 of the Property Law Act 1969 (WA) - Order for sale of property - Turns on own facts
Legislation:
Property Law Act 1969 (WA), s 126(1)
Rules of the Supreme Court 1971 (WA), O 13 r 9(1), O 13 r 9(2)(b)
Result:
Judgment entered for plaintiff in default of appearance
Order for sale of property
Category: B
Representation:
Counsel:
| Plaintiff | : | E L Taylor |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Tottle Partners |
| Defendant | : | No appearance |
Cases referred to in decision:
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Trainor v Trainor [2021] WASC 40
MASTER RUSSELL:
The plaintiff, Viviene Lea Brown, and the defendant, Cherine Toubia, are the registered proprietors as tenants in common in equal shares of a property known as 31A Hartfield Street, Queens Park, Western Australia, being the land that is more particularly described as Lot 1 on survey‑strata plan 70280 (together with a share in common property (if any) as set out on the survey‑strata plan) and which is the whole of the land in certificate of title volume 2904 folio 649 (the Property).
The plaintiff commenced this proceeding by writ of summons on 20 December 2023 indorsed with a statement of claim claiming an order pursuant to s 126(1) of the Property Law Act 1969 (WA) (the Act) that the Property be sold in lieu of partition.
No appearance having been entered by the defendant, the plaintiff applies, by ex parte motion filed on 25 January 2024, for judgment in default of appearance pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
Given the nature of the relief sought, the ex parte motion for judgment in default of appearance was listed in the Master's list and first came before me on 27 February 2024.
The orders proposed in the plaintiff's motion for default judgment included orders as to the conduct of the sale of the Property, which went beyond the relief sought in the writ and statement of claim. As such, in my view, it was appropriate that the defendant be put on notice of the orders sought in relation to the conduct of the sale of the Property. I therefore made orders on 27 February 2024 for the plaintiff to file an affidavit or affidavits in support of the application, to be personally served on the defendant together with the plaintiff's minute of proposed orders.
On 7 March 2024, the plaintiff filed an amended minute of proposed orders. The plaintiff has also filed and relies upon:
(a)an affidavit of service of Graeme Robert Coates sworn on 4 January 2024;
(b)affidavits of Evan Leslie Taylor affirmed on 25 January 2024 and 6 March 2024;
(c)an affidavit of Viviene Lea Brown sworn on 6 March 2024;
(d)an affidavit of David Shane Medlen sworn on 6 March 2024; and
(e)a further affidavit of service of Graeme Robert Coates sworn on 26 March 2024.
Section 126(1) of the Act provides:
Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
The purpose of s 126(1) (and of the legislation preceding it) is to provide a remedy for a joint tenant or tenant in common who, in the event of a dispute with another co-tenant, may otherwise be without an adequate remedy to protect his share or interest in the property.[1] As observed by Master Sanderson in Trainor v Trainor,[2] s 126(1) of the Act does not embody a broad discretion in the Court to grant or refuse an order for sale. What the section anticipates is an order for sale or an order for partition of the property. There is no other alternative available.
[1] Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 650 (Brennan J), 656 - 657 (Deane, Dawson & Galdron JJ).
[2] Trainor v Trainor [2021] WASC 40 [4] - [6].
I am satisfied on the evidence filed by the plaintiff that the defendant has been served with the writ,[3] the plaintiff's ex parte motion for judgment in default of appearance[4] and a copy of the plaintiff's amended minute of proposed orders filed on 7 March 2024.[5]
[3] Affidavit of service of Graeme Robert Coates sworn 4 January 2024.
[4] Affidavits of Viviene Lea Brown, David Shane Medlen and Evan Leslie Taylor filed on 6 March 2024.
[5] Affidavit of service of Graeme Robert Coates sworn 26 March 2024.
At the hearing before me on 28 March 2024, counsel for the plaintiff tendered a certificate signed by the proper officer as required under RSC O 13 r 9(2)(b) certifying that no appearance has been entered by the defendant.
A copy of the record of certificate of title of the Property is attached to the affidavit of the plaintiff sworn on 6 March 2024. It confirms that the plaintiff and defendant are the registered proprietors of the Property as tenants in common in equal shares. Ms Brown also attaches a copy of the mortgage and deposes that she wishes for the Property to be sold. Notice of the application has been given to the mortgagee, National Australia Bank Ltd.[6]
[6] Second affidavit of Evan Leslie Taylor affirmed 6 March 2024.
In the plaintiff's amended minute of proposed orders filed on 7 March 2024, the plaintiff seeks an order that judgment be entered for the plaintiff in the terms set out in the schedule to the amended minute and that the defendant pay the plaintiff's costs of the application.
Having considered the evidence before me, I am satisfied that it is appropriate to make orders to the effect sought in the schedule relating to the sale of the Property, which provide for a sale of the Property by private treaty with the plaintiff to have conduct of the sale. The plaintiff is for that purpose to appoint one or more agents licensed under the Real Estate and Business Agents Act 1978 (WA) to act on behalf of the plaintiff and defendant in the sale of the Property. The orders otherwise appropriately provide for the conduct of the sale of the Property, for the net proceeds of sale to be paid into court until further order and for an account to be taken of the respective entitlements of the plaintiff and defendant. There will be liberty to apply.
Judgment will be entered for the plaintiff against the defendant in default of appearance pursuant to RSC O 13 r 9(1). An order will also be made pursuant to s 126(1) of the Act that the Property be sold.
I will make orders in terms of the amended minute of proposed orders in relation to the conduct of sale, and an order that the defendant pay the plaintiff's costs of the proceedings and of the application as provided in the minute.
As contemplated by the plaintiff's amended minute, notice should be given to the defendant of:
(a)the judgment entered in default of appearance and the orders made; and
(b)her right to apply under RSC O 13 r 14 for an order setting aside or varying the judgment and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AM
Associate to Master Russell
4 APRIL 2024