Edelsten v Burkinshaw - [2011] VSC 362

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…

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 Edelsten v Burkinshaw

Details

AGLC: Edelsten v Burkinshaw [2011] VSC 362
Case: [2011] VSC 362
Decision Date: 5 August 2011

CaseChat Overview and Summary

Edelsten v Burkinshaw involved a dispute between two tenants in common, seeking partition of their jointly held property, in the Supreme Court of Victoria. The parties held property as tenants in common and had previously operated a partnership, which had dissolved. They now sought to divide the property in question, with disagreements arising over the basis of the division.

The legal issues before the court were primarily concerned with the principles governing the division of property between tenants in common, particularly in the context of a dissolved partnership. Key considerations included the applicable statutory provisions under the Property Law Act 1958 (Vic) and the Partnership Act 1958 (Vic), and the court's jurisdiction to determine the matter. Specifically, the court had to determine the appropriate method for valuing the property and the equitable distribution of the proceeds from the sale.

The court found that the equitable principles applicable to the division of property among tenants in common also applied to the division of partnership assets following dissolution. It was established that the court's jurisdiction to order a sale of the property was governed by ss 228, 229, 230, and 233 of the Property Law Act 1958 (Vic) and s 46 of the Partnership Act 1958 (Vic). The court concluded that the method for valuing the property should be guided by fairness and equity, taking into account the contributions of each party and the terms of any prior agreements. The court also emphasised the importance of an equitable distribution of the proceeds, reflecting the respective interests of the parties.

Ultimately, the court ordered the sale of the property and provided guidance on the valuation and distribution of the proceeds, ensuring that the division was fair and just. The final orders of the court were detailed at [39] of the judgment.

Orders

Orders of the court

At [39]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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