Gooderson v Mapstone - [2023] WASC 214

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GOODERSON -v- MAPSTONE [2023] WASC 214
CORAM:   MASTER SANDERSON
HEARD:   27 FEBRUARY 2023
DELIVERED          :   30 JUNE 2023
FILE NO/S:   CIV 1937 of 2022
BETWEEN:   STEPHEN WILLIAM GOODERSON
First Plaintiff
KATHERINE IVY GOODERSON
Second Plaintiff
AND
KIM JAMES MAPSTONE
First Defendant
LEANNE MARJORY MAPSTONE
Second Defendant

Catchwords:

Summary judgment - Application for sale of land under Property Law Act - Turns on own facts

Legislation:

Property Law Act 1969 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	ND Billington
Second Plaintiff	:	ND Billington
First Defendant	:	HR Robinson
Second Defendant	:	HR Robinson

Solicitors:

First Plaintiff	:	Billington Legal
Second Plaintiff	:	Billington Legal
First Defendant	:	Haydn Robinson
Second Defendant	:	Haydn Robinson

Cases referred to in decision:

Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635
Western Australian Club Inc v Nullagine Investments Pty Ltd (1992) 6 WAR 441

MASTER SANDERSON:

This is the plaintiffs' application for summary judgment. It relates to two properties, one in Fremantle and one in Cannington. The plaintiffs and the defendants own both properties as tenants in common in equal shares. In the action the plaintiffs seek sale of both properties pursuant to s 126 of the Property Law Act 1969 (WA). However, at the hearing on 27 February 2023 the plaintiffs submitted that if they are not entitled to summary judgment in relation to the Cannington property, they would not be pursuing summary judgment in relation to the Fremantle property. The real issue between the plaintiffs and the defendants is whether or not the Cannington property should be sold.
The relevant facts can be summarised as follows. Barry Alfred Black is the father of the second plaintiff and the second defendant and the father‑in‑law of the first plaintiff and the first defendant. In mid‑2003, Mr Black needed to make arrangements to vacate his home and business premises in Hope Valley. The plaintiffs and the defendants agreed to buy a suitable property for Mr Black to use as his residence and business premises. In or about September 2003, a property in Cannington was located which Mr Black found suitable, subject to approval for him to construct a shed in which he would carry on his marine engineering business. The plaintiffs and the defendants entered into a contract to purchase the Cannington property with the shed condition. That condition was subsequently satisfied. The plaintiffs and the defendants settled the purchase of the Cannington property on 14 November 2003.
Mr Black took possession of the Cannington property in about May 2004. He has continued to use it as his residence and business premises. The conditions upon which Mr Black has possession of the Cannington property included a periodic tenancy agreement dated 15 May 2004 and a further periodic tenancy agreement dated 20 July 2007.
The defendants say that had they been informed by the plaintiffs that the plaintiffs would contend they had a right to evict Mr Black from the Cannington property at any time, they would not have entered into the agreement for the purchase of the Cannington property. Further, the defendants say that had the plaintiffs made that disclosure, they would have assisted Mr Black to buy a suitable property without entering into any agreement with the plaintiffs.
Both parties agree that s 126 of the Property Law Act gives a party who holds a half‑interest in a property the right to have the property sold. (There is no suggestion in this case that sub‑division of the property is possible.) The defendants say that there is an agreement between the parties which allows Mr Black to remain in the Cannington property so long as he wishes to do so. It is the defendants' position this agreement is binding on the plaintiffs and, at least on a summary judgment application, an order for sale ought not be made.
The defendants' argument has a number of different strands. First, the defendants allege there was an agreement between the plaintiffs and the defendants, the effect of which was that the Cannington property would not be sold so long as Mr Black required it as a residence and as a place from which he could conduct his business. Whether or not Mr Black had some arrangement with the plaintiffs and the defendants is irrelevant to this question. Although his interests are directly affected by this application, he is not a registered proprietor of the Cannington property and he could not stand in the way of a sale. The question is whether or not there was an agreement between the plaintiffs and the defendants.
In opposition to this application, the defendants filed an affidavit of the second defendant sworn 16 November 2022. The second defendant deals with the alleged agreement at pars 19 ‑ 21 of her affidavit. These paragraphs read as follows:
On or about 01/07/2003 the Plaintiffs and Defendants discussed the idea of us buying a property for Barry to shift into when he vacated Hope Valley; this discussion took place either at the Plaintiffs' home or the Defendants' home.
The discussion was led by the Second Plaintiff who said in substance:
the Plaintiffs and Defendants will buy a property in equal shares for Barry to use as his home and to carry on his business;
the property will need to be big enough to enable Barry to build a shed for his business;
the property will need to be located close to the airport because Barry frequently collected airfreighted parts for use in his business and be close to the Welshpool industrial area because Barry often used businesses in that area in carrying on his business;
Barry can use the property as his home and business premises for as long as he wants;
Barry is to pay rent for use of the property to assist us in making repayments for the loans needed to buy it;
Barry will need to agree to the property that is to be purchased being suitable; and
the property will be sold when Barry no longer requires the use of it.
We all agreed to proceed to purchase a property for Barry on those terms ('Agreement').
It is a fundamental principle of the summary judgment procedure that the version of facts most favourable to the defendant must be assumed. Of course, if the version of facts propounded by a defendant is inherently improbable, the position may be different. But here the evidence of the defendants is quite clear. They say an agreement was reached and they set out the terms of that agreement in some detail. That version of the facts must be accepted. It must also be accepted for the purposes of a summary judgment application that the agreement is enforceable. It may be there has been part performance of the agreement and that will overcome the difficulty occasioned by the agreement not being reduced to writing. A summary judgment application is not the occasion to consider this issue in detail. For the purposes of this application, I will assume that the agreement as alleged by the defendants was in fact reached and that the agreement is enforceable.
The question then is whether or not such an agreement can stand in the face of s 126 of the Property Law Act.
Both parties referred to a number of different authorities and both paid particular attention to the decision of the High Court in Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635. The difficulty with that decision is that although it was concerned with the question of whether or not it was possible for co‑owners to contract out of s 126 of the Property Law Act, the decision itself turned on a point of construction. It is open to question whether the various statements of the judges in that decision actually represent the law in Western Australia. The decision of the Full Court in Western Australian Club Inc v Nullagine Investments Pty Ltd (1992) 6 WAR 441, deals squarely with the issue. Malcolm CJ put the position this way:
The question in the present case, however, is whether parties can by contract bargain away or fetter the right to partition. Rowland J, in the fifth proposition which he stated in his judgment to which I have referred earlier clearly considered that they could. In my opinion, it is on this point that the outcome of the present appeal depends (51).
His Honour then undertook a detailed analysis of the authorities and concluded it was open to parties to contract out of the section. Subsequent authorities quoted by counsel for the parties have refined this position and at the moment it is probably correct to say that whether or not a restraint on alienation imposed by a contractual agreement and which is at odds with s 126 will be enforceable if it is reasonable and not contrary to public policy. In other words, each case is dependent on its facts.
Once that point is reached, it is clear this is not a case where summary judgment should be granted. I have reached that conclusion for two reasons. First, if an agreement between the parties exists, then whether or not the restraint imposed by that agreement is reasonable will depend upon the broad range of circumstances and those matters can only be considered at trial. Second, the state of the law in this area is by no means certain. That being so, there is some other reason why summary judgment ought not be granted.
The plaintiffs' application will be dismissed. The costs of the application, including reserved costs, will be costs in the cause.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CM
Associate
30 JUNE 2023