Chang v CUPIN
[2000] WASC 176
•7 JULY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CHANG -v- CUPIN [2000] WASC 176
CORAM: MASTER BREDMEYER
HEARD: 4 JULY 2000
DELIVERED : 7 JULY 2000
FILE NO/S: CIV 1407 of 2000
BETWEEN: JEAN CHANG
Plaintiff
AND
PHILIP PAUL CUPIN
Defendant
Catchwords:
Ex parte motion for orders on a default judgment - Joint tenants of property - Order for sale of property
Legislation:
Property Law Act 1969 (WA), s 126
Transfer of Land Act (1893) WA, s 60
Result:
Application allowed
Representation:
Counsel:
Plaintiff: Ms N N Oldfield
Defendant: No appearance
Solicitors:
Plaintiff: Wojtowicz Kelly
Defendant: No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
MASTER BREDMEYER: This is an application by the plaintiff for a judgment under O 13 r 8 of the Rules of the Supreme Court in default of the defendant, filing an appearance. I am satisfied that the writ was served on the defendant, that he filed no appearance and that this application and the affidavit in support of the plaintiff sworn 15 June 2000 were served on the defendant. I can only conclude that he has chosen not to attend and not to contest the action.
I must be satisfied that the statement of claim and the affidavit of Ms Chang support the relief claimed. The plaintiff and defendant were co‑proprietors of a property at 137A Salisbury Street, Bedford, the subject of Certificate of Title Volume 2010 Folio 63. The parties co‑habited in a de facto relationship between January 1995 and January 1996. The certificate of title does not state whether they are joint tenants or tenants in common, however, by s 60 of the Transfer of Land Act 1893 (WA) they are deemed to be joint tenants.
The statement of claim sets out the arrangements between the parties when they purchased the land in 1994 and when they built a house on it in 1995. Paragraph 10 of the statement of claim is important and I quote:
"10.In January 1996 the parties separated with a further oral agreement that (notwithstanding the terms of the First Agreement) the defendant would thereafter pay all the mortgage payments and other periodic outgoings during his exclusive occupation of the said land without contribution from the plaintiff."
The calculation of the $90,646 said to be owing by the defendant to the plaintiff is set out in par 13 of the statement of claim. The figures in par 13 have been erroneously totalled at $90,646. The correct total is $94,776. The plaintiff has asked me to amend this and I think it just to do so under the slip rule. I have been told that the plaintiff made four other mortgage payments of $1000, $500, $500 and $1200 in the period April and May 2000 - see ex JC4 to her affidavit. The plaintiff has asked me to amend the statement of claim to allow these payments. I decline to do so without an amendment to the affidavit to say that she paid these sums and service of it on the defendant.
I have made my own calculations as follows. I can ignore the deposit of $15,000 on the purchase of the land which was paid equally by both parties. The defendant is to pay half of the stamp duty paid by the plaintiff, equals $1750. He is also to pay half of the payments of $10,000 and $16,000 paid by her towards the construction of the house, equals $13,000. The defendant is to pay 45 mortgage payments at $1600 per month as at the end of March 2000, pursuant to the agreement set out in par 10 of the statement of claim, equals $72,000. The defendant is also to pay water rates, 1996‑2000, of $3438 and shire rates, 1996‑2000, $4588, all of which were paid by the plaintiff which should have been paid by the defendant under the agreement described in par 10 of the statement of claim. The total of these sums is $94,776.
I will amend par 13 and par 15.2 of the statement of claim to show a total of $94,776 instead of $90,646.
I am satisfied of the correctness of the other orders sought in the summons subject to some minor changes I mention later. Under s 126 of the Property Law Act 1969 (WA), a co‑owner to the extent of a half‑share or upwards in land is entitled to have the land divided or to have the court direct a sale of it. In this case it does not make sense to subdivide the land on which is erected a two‑storey duplex. By subs (2) the court can, at the request of any party, direct a sale of the land, notwithstanding the dissent of the other party. By subs (3) the court may direct a valuation of the share of a party requesting a sale. By subs (6) the court may allow any of the parties interested in the land to bid at the sale on such terms as the court deems reasonable as to non‑payment of deposit or as to setting off or accounting of the purchase moneys or any other part thereof. I consider the proposed sale to the plaintiff is reasonable in the circumstances.
Order 7 in the chamber summons states that the defendant be ordered to forthwith vacate the said land. I will alter that to read that the defendant vacate the said land within 28 days of service of this order upon him.
Paragraph 9 of the summons seeks an order that the defendant be restrained and an injunction be granted restraining him from removing from the said land all furniture, fixtures and effects other than personal effects and clothing of the defendant. I do not consider that I have jurisdiction to grant that order. If the plaintiff wishes to seek that order, she may apply to a Judge.
Paragraph 10 reads that "the defendant pay the plaintiff's costs of this action to be taxed". I will alter that to read that the defendant pay the costs of this action and of this application to be taxed.
Subject to those changes I will make the orders as asked in the summons.
The defendant has the right to apply under O 13 r 10, on notice to the plaintiff, to apply to have the orders set aside or varied, but must do so promptly. He also has the right to appeal from my decision to the Full Court of the Supreme Court but must do so within 21 days.
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