Edelsten v Burkinshaw
[2011] VSC 362
•5 August 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. SCI 2010 01356
| TREVOR GEORGE EDELSTEN | Plaintiff |
| v | |
| VICKI JEAN BURKINSHAW, SHAYLENE LEE BLOXHAM, & NOEL DOUGLAS BURKINSHAW | Defendants |
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JUDGE: | KAYE J | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 27, 28, 29 July 2011, 1 August 2011 | |
DATE OF JUDGMENT: | 5 August 2011 | |
CASE MAY BE CITED AS: | Edelsten v Burkinshaw & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 362 | |
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REAL PROPERTY – Tenants in common – Partition – Dissolution of partnership – Basis of division of property – Jurisdiction of Supreme Court – Property Law Act 1958 (Vic) ss 228, 229, 230, 233 – Partnership Act 1958 (Vic) s 46.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Barton | David Messenger |
| For the Defendants | Mr A Donald | Dwyer Mahon & Robertson |
HIS HONOUR:
The dispute in this case concerns a family farm, comprising some 8,000 acres (3,260 hectares) at Annuello in the Mallee, which is jointly owned by the plaintiff, and by the first defendant and the third defendant. The parties to the proceeding enjoy a harmonious, and indeed close, relationship. In the course of the trial before me, a number of their differences were resolved. However, the parties were not able to reach an agreement as to all the outstanding issues between them.
The proceeding is brought by writ seeking the sale or division of the parcels of land which comprise the farm, and orders for dissolution of two partnerships, and for the taking of accounts in relation to those partnerships. Section 225 and s 234C of the Property Law Act 1958 provide that an action for division, or sale, of jointly owned property shall be heard by the Victorian Civil and Administrative Tribunal (“the tribunal”), and not (subject to certain exceptions) by the Supreme Court. However, I am satisfied that this case falls within two exceptions, which are provided by s 234C. In particular, the matter, which is the subject of the application for sale or division of the property, relates to a proceeding under the Partnership Act 1958, and accordingly the Supreme Court has jurisdiction to hear the application for sale or division under s 234C(2) of the Act. Furthermore, in my view, pursuant to s 234C(4)(b), special circumstances exist, which justify the court hearing the application. I am so satisfied because the subject matter is somewhat complex, and, further, a substantial part of the dispute does not fall within the jurisdiction of the Tribunal. The defendants accepted that the court does have jurisdiction to hear the application for sale or division of the property.
Annuello is situated between Robinvale (to the north) and Manangatang (to the south) in the north west of Victoria. The land, with which this dispute is concerned, is contained in three adjoining parcels. The first, allotment 41 of the Parish of Koimbo, consists of 3,490 acres. It is the northern most of the three allotments. It is an irregular shaped allotment, the southern boundary of which is Tin Dog Road. The second parcel is contained in allotment 43 Parish of Koimbo. It is commonly referred to as “Bawden’s”. It consists of some 700 acres, immediately to the south of Tin Dog Road, and abutting the south west corner of allotment 41. Lots 41 and 43 jointly comprise the property referred to by the parties as the “Home Block”, and are contained in Certificate of Title Volume 9841 Folio 103. The plaintiff, the first defendant and the third defendant are the registered proprietors of the land consisting of the Home Block as tenants in common. The plaintiff is entitled to one share, and the first and third defendants (who are husband and wife) are jointly entitled to two shares, of the Home Block.
The third parcel of land is contained in allotment 46 Parish of Koimbo. That lot adjoins the south and east side of lot 43 and part of the south boundary of lot 41. Thus, part of its northern boundary of lot 46 abuts Tin Dog Road. Lot 46 is referred to by the parties as “Tuck’s”. It consists of 3,588 acres. The property is held, as tenants in common, by the plaintiff as to one share, and by the first and third defendants jointly as to one share.
For many years, the three parcels of land have been jointly farmed by the family, to which the parties belong. The main farming activity comprises for growing of wheat and barley crops, together with some sheep farming. However, sheep have not been run on the property for almost a decade.
Background
The plaintiff, Trevor Edelsten (“Trevor”) is the brother of the first defendant, Vicki Burkinshaw (“Vicki”). Vicki is married to the third defendant, Noel Burkinshaw (“Noel”). Vicki and Trevor are the children of Margaret and the late Albert Edelsten. In the early 1950s, Albert and Margaret Edelsten entered into a contract to purchase the Home Block, and from that time they lived on and farmed that property. There were six children of the marriage, namely: Noel, Colin, Lois, Iris, Trevor and Vicki. In 1970, Colin and Noel Edelsten entered into a terms contract to purchase Tuck’s. In due course, Noel Edelsten left the farm, and since then he has lived permanently in Queensland. Trevor took over his share of the contract to purchase Tuck’s. Ultimately, in September 1980 Colin and Trevor became registered as proprietors of Tuck’s as tenants in common in equal shares.
Vicki met Noel Burkinshaw in 1978, and they married one year later. Originally, they lived together in a caravan on the Home Block. In 1982, they moved to a house on Tuck’s, where they have resided since. Their two daughters, who are now adult, have left the farm and are living in Melbourne.
From the early 1980s, Colin, Trevor, Vicki and Noel jointly farmed the two properties, consisting of the Home Block and Tuck’s. A number of years ago, Albert Edelsten suffered a bad accident while working on a tractor, and, since then, his capacity to work on the property had been somewhat limited. Ultimately, in 2000 Albert and Margaret Edelsten retired from the farm, and commenced to live in Mildura. Albert died in 2001, leaving the Home Block to his wife Margaret. In November 2001, Margaret Edelsten transferred the Home Block to Colin, Trevor, and Vicki and Noel, for consideration of $523,875. The purchase was funded by a mortgage executed by Colin, Trevor, Vicki and Noel to Margaret, by which they were required to pay annual instalments of approximately $52,000 each. As a result, the registered proprietors of the Home Block were, as tenants in common, in equal shares: as to one share, Colin; as to another share, Trevor; and as to a third share, Vicki and Noel. The two properties, namely the Home Block and Tuck’s, continued to be jointly farmed by Colin, Trevor, Noel and Vicki in partnership. That partnership was referred to in this proceeding as “the four person partnership”. During that period, Noel and Vicki continued to live in a house on Tuck’s, and Colin and Trevor lived in the original family home on the Home Block. It would appear that Trevor has suffered some illnesses, so that his ability to work in the partnership has been somewhat restricted. However, it was acknowledged by Noel and Vicki, in their evidence, that Trevor has made a useful contribution to the work of the partnership.
In addition, Colin and Trevor were parties to another partnership (referred to as the “two person partnership”). That partnership owned some plant and equipment, which was used by the four person partnership in farming the properties.
In mid-2007, Colin became ill, and he died in July 2007. By his last will, Colin left the whole of his estate to Vicki and Noel. The second defendant and Vicki are the executrices of his will. As a result of his will, as I stated, the registered proprietors of the Home Block are, as tenants in common, in equal shares: as to two shares, Noel and Vicki, and as to one share, Trevor. The registered proprietors of Tuck’s are, as tenants in common in equal shares: as to one share, Noel and Vicki, and as to one share, Trevor. After the death of Colin, Trevor moved to Mildura to live with his mother. He returned to the farm for a short period in the middle of 2011, but he has since resumed living with his mother in Mildura.
The claim
In his further amended statement of claim, the plaintiff claimed the following relief:
(1)Orders for the sale of the Home Block and Tuck’s, and orders for the division of the proceeds of the sale of those properties in accordance with the interests of the parties in them; or, alternatively, orders for the division of the properties among the parties;
(2)Declarations that the four person partnership, and the two person partnership, were each dissolved, and orders for the winding up of those partnerships, appointment of receivers to those partnerships, and for the taking of accounts of the partnerships.
(3)A declaration that one or other of the two partnerships was entitled to receive the proceeds of a MLC Limited policy on the life of Colin, and an order that the first and second defendants, as executrices of the estate of Colin, pay such proceeds to the relevant partnership.
At the commencement of the trial, the plaintiff did not persist with the application for relief in relation to the proceeds of the life insurance policy. The defendants resisted the plaintiff’s claim for the sale of the properties, and his claim for relief in relation to the two partnerships, on the basis of an oral agreement which, they alleged, was entered into by the parties on 19 April 2007. The defendants maintained that, by that agreement, the parties had agreed to resolve all of the outstanding issues between them, including the application by the plaintiff for the sale of the properties, and the application by him in relation to the partnerships. However, on the third day of the case, the defendants abandoned reliance on that defence.
At that stage of the case, the issues between the parties narrowed substantially. The parties agreed that there should be a division of the properties, rather than a sale of them. The position taken by the parties reflected their evident desire that they continue to live on and farm the properties. However, the parties were unable to agree as to the basis upon which a relevant partition of the property should take place. On behalf of the plaintiff, it was submitted that, pursuant to such a division of the properties, the defendants should transfer their two thirds interest in the Home Block to him, and that he should transfer his one half interest of Tuck’s to the defendants. As a result of the division claimed by the plaintiff, he would obtain sole title to the Home Block, Vicki and Noel would have sole title to Tuck’s, and the current position relating to the ownership of Bawden’s would remain unaffected, namely, that Noel and Vicki would be registered proprietors of Bawden’s as tenants in common as to two shares, and that Trevor would be the registered proprietor of Bawden’s as tenant in common as to one share.
On the other hand, the defendants contended that, by an order for division of the properties, the defendants should transfer their two third interest in the Home Block to the plaintiff, and the plaintiff should transfer to the defendants his one third interest in Bawden’s, and his one half interest in Tuck’s, to them. As a consequence of such a division, Trevor would be the sole proprietor of lot 41, and Vicki and Noel would jointly be the sole proprietors of Bawden’s (lot 43) and Tuck’s (lot 46).
Thus, the principal issue which remained in dispute between the parties was whether, as part of the orders for division to be made in the case, the plaintiff’s one third share of Bawden’s should be transferred to the first and third defendants. In addition, there remained outstanding some other issues relating to the taking of accounts in relation to the partnerships, and the date upon which the division should take place. However, in final address, those issues were substantially resolved. Thus, the principal outstanding question which I must determine is whether, as part of the orders to be made for division of the land, the plaintiff should be ordered to transfer his one third share in Bawden’s to the defendants.
The evidence
A large proportion of the evidence in the case was directed to the question of the existence of the oral agreement of 19 April 2007. As I stated, on the third day of the case, the defendants abandoned reliance on their defence arising out of such an alleged agreement. There was, however, some short evidence led by the parties relating to the issue which I must now determine.
Noel Burkinshaw gave evidence as to the history of the partnerships, and the manner in which the properties had been farmed by the members of that partnership.
Noel described the land contained in lot 41 as comprising rising sandy loam soil. He said that there is an area of heavier soil in Bawden’s. In cross-examination, he agreed that approximately 500 acres of Bawden’s consists of heavy grey limestone in the flat land in the middle of it, with rising undulating sand on the north and south of it. He said that, in a dry season, Bawden’s tends to have a very light crop, but that it matches the rest of the farm on a reasonable year. However, generally, the Mallee does not have many wet seasons, particularly in recent times. He considered that the cropping capacity of the Home Block and of Tuck’s is quite similar, and he said that the land is all quite comparable. In cross-examination, he did not consider the land on Bawden’s to be the best ground on the farm. He considered that the values per acre of each of the three allotments, would be quite similar.
Trevor Edelsten gave short evidence, in relation to the issue which I must determine. He stated that, in the heavier seasons, the grain from Bawden’s is harder than the grain from the lighter soil on the rest of the property, and as a result there is a better financial return from the grain at Bawden’s. He also stated that he wished to retain an interest in Bawden’s property, because his late father had his serious accident on that allotment.
Mrs Margaret Edelsten also gave brief evidence. She stated that she considered that Bawden’s had the best soil on the property. She stated that, in one year, she and her late husband had a harvest which returned 12 bags of wheat per acre. She said that in a wet year, a good yield may be derived from Bawden’s, but if the year was not wet, it did not produce very much grain, because of the heavy ground. In cross-examination, Mrs Edelsten agreed that she had not been involved in the farming of the property for at least one decade, and she understood that farming techniques had changed during that period of time.
The other, and probably most significant, evidence relating to this issue, was that of Mr Shane Noonan, who is a certified practising valuer. Mr Noonan conducted a valuation of the three allotments (lots 41, 43 and 46) as at 22 June 2010. His valuation report was tendered in evidence. By that valuation, Mr Noonan valued the three allotments in the sum of $2,940,000. He placed the following values on each of the separate allotments:
Lot 41 $1,215,000 Lot 43 (Bawden’s) $260,000 Lot 46 (Tuck’s) $1,465,000
Mr Noonan assessed the value per acre of each of the three lots (excluding structural improvements) as follows:
Lot 41 $330 per acre Lot 43 (Bawden’s) $367 per acre Lot 46 (Tuck’s) $343 per acre
In his evidence, Mr Noonan stated that he did not consider that the values of the three lots had altered materially during the last twelve months.
In his report, Mr Noonan stated that the land, contained in the three lots, comprises good, undulating, typically sandy, to sandy loam, country, with generally minimal limestone. The northern sections of allotment 41 contain inferior soil compared to the balance of the land, with the better soil being contained in allotment 46.
Part IV of the Property Law Act 1958
The provisions of Part IV of the Property Law Act 1958, with which this case is concerned, were introduced into that Act by the Property (Co-ownership) Act 2005. The previous provisions of Part IV had been based on the United Kingdom provisions, and were first enacted in Victoria in the Property Law Act 1928. The principal change effected by the 2005 enactment was constituted by the investing of jurisdiction in the tribunal, rather than in the courts, of the power to order either the division or sale of jointly owned property. In addition, the substantive provisions of the Act were substantially amended. As I stated, I am satisfied that, pursuant to s 234C, the Supreme Court has jurisdiction to hear and determine the claim by the plaintiff under Part IV of the Act.
Section 228(1) provides that, in any proceeding under the Division, the tribunal may make any order it thinks fit “to ensure that a just and fair sale or division of land … occurs”. Subsection (2) provides that the court may order: the sale of the land and the division of the proceeds of sale among the co-owners; the physical division of the land among the co-owners; or a combination of a sale and physical division. Section 229(1) provides that if the tribunal determines that an order should be made for the sale and division of land, the tribunal must make an order for the sale of the land and division of the proceeds of such sale, unless the tribunal considers that it “would be more just and fair” to make an order for either the division of the land among the co-owners, or for a combination of the sale and division of the land. Subsection (2) provides that, without limiting any matter, which the tribunal might consider in determining whether a division (or a combination of division and sale) would be more just and fair, the tribunal must take into account: the use being made of the land; whether the land is able to be divided, and the practicability of dividing the land; and any particular links with, or attachment to, the land, including whether the land is unique or has a special value to one or more of the co-owners.
Analysis
As I stated, it is now common ground that there should be an order for division (formerly known as “partition”) of the land, rather than for a sale of the land. Based on the evidence which I received in this case, it is clear that an order for division of the land, rather than one for sale of it, would be “more just and fair” to each of the parties. The land has, for many decades, been productively farmed by the parties. The defendants, Noel and Vicki Burkinshaw, have been actively involved in farming the land for more than 30 years, and their children grew up on it. Trevor Edelsten has a long connection with, and attachment to, the land. Further, it is clear that, on a division of the land, it is just and fair that Noel and Vicki should become sole proprietors of Tuck’s (lot 46), on which they have lived for almost 30 years. Similarly, it is just and fair that, under such a division, Trevor should become sole proprietor of lot 41, on which he lived for most of his life, until the death of his brother Colin in 2007. The specific question, which I must determine, is whether, in those circumstances, Trevor should retain his one third interest as tenant in common in Bawden’s (lot 43), or whether, alternatively, I should direct that that interest be transferred by Trevor to Noel and Vicki.
As I have stated, s 229 provides that the touchstone, for determining whether to order a sale, or division, of the land, is whether it would be “more just and fair” to make an order for division of the land. Where the court determines that such a disposition is to be made, the section does not specifically provide on what basis the land is to be divided. However, clearly, it would be inferred from s 229 that the land should be divided on a basis which is “just and fair”. The use of such a phrase in the legislation is not a licence to the court to resort in some form of instinctive justice. Rather, clearly, the basis of the division of the land must be determined in a manner which best accords with the legitimate rights and interests of each of the parties.
It is clear from the evidence that lot 43 (Bawden’s) would fit conveniently with a farm conducted on lot 46. Equally, it could be conveniently farmed by the owner of lot 41. Further, there is no evidence that the ownership of Bawden’s is critical to the viability of either lot 41, or lot 46, as an ongoing concern as a wheat and barley farm. In other words, no evidence was given by Noel and Vicki that they would be unable to productively farm lot 46, without having access to lot 43. Similarly, Trevor did not give evidence that he would be unable to farm lot 41, without being able to use lot 43.
On the other hand, it is, clear, beyond doubt, from the evidence that it is in the best interests of the parties that their legal relationship, as co-owners of land, should be terminated by order of the court. As I have already observed, Trevor does enjoy a close personal relationship with Vicki and Noel. However, it is clear that the legal relationship between the parties, as co-owners, is no longer workable. The parties have been in dispute for some time. A number of attempts had been made to resolve that dispute. The evidence, which was led concerning the meeting between the parties on 19 April 2007, discloses that there was, to use a neutral term, a “meeting of minds” as to the terms upon which the disputes, between the parties, might be resolved. However, whatever arrangement was made on that day, it was not, ultimately, put into effect. In the course of the trial, a number of attempts were made between the parties to resolve the issues between them. While the issues did narrow, nevertheless a number of issues remained unresolved.
In my view, if the parties were to remain as co-owners of lot 43, it is highly likely, if not inevitable, that, ultimately, there would be further disputation between them concerning their entitlements to lot 43, and concerning their entitlements to the use and enjoyment of lot 43. Mr P Barton, who appeared for Trevor, in final address stated that such disputes might be avoided by Noel and Vicki being entitled to farm lot 43, and, as consideration, paying to Trevor an occupation fee in relation to his one third interest in that property. However, such an arrangement could only be made by agreement between the parties. Furthermore, it could not bind the parties (nor their successors) in perpetuity. I am satisfied, from the evidence before me, that, if the parties were to remain as co-owners of lot 43, it would be a recipe for further dispute and litigation between them. Such a result would not be in the best interests of either Trevor, or of Noel and Vicki. Furthermore, it is in the public interest that the proceeding, which is before me, resolves all outstanding issues between the parties.
The values, which were placed by Mr Noonan on lots 41, 43 and 46, respectively, were not in dispute. Based on Trevor’s one third interest in lot 41 and lot 43, and on his one half interest in lot 46, his current interest in those allotments would be valued in the sum of $1,224,167. If, as a result of an order for division of the land, Trevor were to become the sole proprietor of lot 41, and Vicki and Noel the sole proprietors of lots 43 and 46, Trevor’s interest, as a result of such orders, would be valued in the sum of $1,215,000. Thus, if I were to accede to the division contended for by the defendants, Trevor would be left with property, the value of which is $9,167 less than the notional value of his interest in the three allotments.
Section 230 of the Property Law Act provides that the tribunal (and, thus, in this case, the court) if it considers it just and fair, may order that compensation be paid by specified co-owners to compensate for any difference in the values of the parcels or shares, when the land is divided. Section 232(h) provides that the tribunal (and, thus, in this case, the court) may order that the sale and division of the proceeds of sale, or the physical division, of the land, be subject to any terms or conditions which the tribunal (and thus the court) considers necessary or desirable in any particular case. Mr A Donald, who appeared for the defendants, submitted that those provisions entitle the court to order that the transfer by Trevor to Noel and Vicki of his one third interest in lot 43 be subject to a condition that Noel and Vicki pay to Trevor the sum of $9,167. Mr Barton did not contend to the contrary. Nor was he able to point to any reason why the payment to Trevor of such a sum would not adequately compensate him for any financial disadvantage, which he might otherwise suffer as a consequence of the transfer of his one third interest in lot 43 to Noel and Vicki.
On the other hand, it is clear, on the evidence, that Noel and Vicki would be able to make more productive use of lot 43 than Trevor. For almost three decades, Colin and Noel were the driving forces of the farm partnership. After Colin’s death in 2007, Noel has been solely responsible for the conduct of the farm on all three allotments. In his evidence, Trevor did indicate that he might be interested in running some sheep on lot 43. However, sheep have not been pastured on any part of the Home Block (or on Tuck’s) for almost one decade. It would seem, from the evidence, that the highest and best use of each of the allotments is for growing wheat and barley. As I stated, it is also clear, on the evidence, that it is Noel, rather than Trevor, who is best equipped to farm the properties.
In all those circumstances, in my view, it is appropriate, fair and just that the division of the properties take place upon the basis contended for on behalf of the defendants. I shall therefore make orders that there be a division of lots 41, 43 and 46 as follows: That Noel and Vicki transfer to Trevor their one half interest as tenants in common of lot 41; and that, subject to the payment by Noel and Vicki to Trevor of the sum of $9,167, Trevor transfer to Noel and Vicki his one third interest in lot 43, and his one half interest in Tuck’s.
Other issues
It is common ground that the plaintiff is entitled to compensation, pursuant to s 233(1)(a) of the Property Law Act, arising out of the use by Noel and Vicki of the land, in respect of which the plaintiff had an interest as a tenant in common. At the conclusion of final addresses, it was agreed that the compensation would consist of an occupation fee at the rate of $15.50 per annum per acre. That fee would be paid by the first and third defendants to the plaintiff from 1 July 2008 to the date on which the orders for division of lots 41, 43 and 46 take effect.
The partnerships
As I have already stated, it is common ground that the four person partnership, and the two person partnership, were each dissolved on 1 July 2008. The plaintiff is entitled to his share of the net assets of the two partnerships. The plaintiff also claimed an accounting of his share of the profits, derived from the use by Noel and Vicki of the partnership assets since 1 July 2008. Section 46 of the Partnership Act 1958 entitles the plaintiff, at his option, to claim a share of the profits derived from the use of the partnership assets, or, alternatively, to interest at the rate of 7% per annum on the amount of his share of the partnership assets. The plaintiff exercised his option in favour of the later remedy. Accordingly, the plaintiff will be entitled to interest at the rate of 7% per annum on his 25% share of the four person partnership assets, and on his 50% share of the two person partnership assets, from 1 July 2008. The parties have not been able to agree the value of the assets of the two partnerships. Accordingly, I shall give directions for the determination of the value of those assets to be carried out by an appropriate judicial officer.
Date of division of land
Mr Donald submitted that the orders for division of the properties should be expressed to take effect from the date on which the crop, which has been planted by Noel and Vicki on the Home Block and on Tuck’s, is harvested. Noel gave evidence that he planted the crop between April and June last, and that he expects to be able to harvest it in November. However, if the weather is unseasonably wet, he may not be able to harvest the crop until later. It was therefore submitted that the orders for division of the 3 lots should not take place until 31 January next.
Initially, Mr Barton opposed the proposition advanced by Mr Donald, and submitted that division should take place immediately. Mr Barton’s principal concern was that, otherwise, his client would not be adequately compensated for the use of the partnership assets and the use of the land by Noel and Vicki from the date on which I make orders until 31 January 2012. However, he accepted that, if the amount of interest to be paid on the use by Noel and Vicki of the partnership assets, and the occupation fee in respect of their use of the land, were to be paid to 31 January 2012, the plaintiff would be appropriately compensated. Accordingly, I propose to make orders that the division of the land not take effect until 31 January 2012. The occupation fee, in respect of the use by Noel and Vicki of the plaintiff’s share of the land, and the interest payable to the plaintiff in respect of the use by Noel and Vicki of his share of the partnership assets, will be paid to 31 January 2012.
Proposed orders
Based on the foregoing conclusions, and subject to hearing from counsel as to the proper expression of the orders, I propose to make the following orders:
(1)That there be an order for the division of the land contained in Certificate of Title Volume 9481 Folio 103 (“the Home Block”) and of the land contained in Certificate of Title Volume 8876 Folio 048 (“Tuck’s”) as follows:
(a)the plaintiff, the first named defendant and the third defendant shall cause the Home Block to be subdivided into two titles, one of which is to comprise the land contained in Crown Allotment 41 Parish of Koimbo and one of which is to comprise the land contained in Crown Allotment 43 Parish of Koimbo.
(b)subject to such subdivision, on 31 January 2012 –
(i)the first defendant and the third defendant shall transfer to the plaintiff the whole of their right title and interest in Crown Allotment 41 as tenants in common as to two of a total of three equal undivided shares thereof to the plaintiff.
(ii)subject to and conditional upon the payment by the first defendant and the third defendant to the plaintiff of the sum of $9,167, the plaintiff shall transfer to the first defendant and the third defendant the whole of his right title and interest in Crown Allotment 43 as tenant in common as to one of a total of three equal undivided shares thereof.
(iii)the plaintiff shall transfer to the first defendant and the third defendant the whole of his right title and interest in Tuck’s as tenant in common as to one of a total of two equal undivided shares thereof.
(2)Order that the first defendant and the third defendant pay to the plaintiff an occupation fee at the rate of $15.50 per acre in respect of the use of the interest to the plaintiff in the Home Block, and the interest of the plaintiff in Tuck’s, from 1 July 2008 to the date on which the division of the land takes effect.
(3)Declare that the four person partnership (referred to in paragraph 6 of the further amended statement of claim) and the two person partnership (referred to in paragraph 15 of the further amended statement of claim) have each been dissolved as at 1 July 2008.
(4)Order and direct that the net value of the assets (after taking into account liabilities) of the four person partnership and of the two person partnership be determined as at 1 July 2008.
(5)Order that the first and third defendants pay to the plaintiff an amount equivalent to his one quarter share of the net assets of the four person partnership and an amount equivalent to his one half share of the net assets of the two person partnership.
(6)Order that, pursuant to s 46 of the Partnership Act 1958, the first defendant and the third defendant pay to the plaintiff interest at the rate of 7% per annum in respect of their use of the plaintiff’s one quarter share of the four person partnership assets, and of the plaintiff’s one half share of the two person partnership assets, from 1 July 2008 to the date on which the division of the land takes effect.
(7)Order that the plaintiff and the first and third defendants each cooperate and do all things necessary, and execute all documents necessary, to effect the subdivision of the Home Block in accordance with paragraph 1(a) of these orders.
(8)Order and direct that the plaintiff and the first and third defendants each cooperate and do all things necessary, and execute all documents necessary, to effect the transfer of their interests in the Home Block and Tuck’s in accordance with paragraph 1(b) hereof.
I shall hear counsel on the question of interests and costs, and also on the appropriate directions to be made in order to ensure the expeditious and efficient determination of the net assets of the two partnerships, in accordance with paragraph (4) of the draft minutes of orders set out in the preceding paragraph.
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