Jarvis v Jarvis - [2025] WASC 271

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   JARVIS -v- JARVIS [2025] WASC 271
CORAM:   MASTER RUSSELL
HEARD:   20 MARCH 2025
DELIVERED          :   20 MARCH 2025
PUBLISHED           :   4 JULY 2025
FILE NO/S:   CIV 2467 of 2024
BETWEEN:   STEPHEN JARVIS
Plaintiff

AND

CHRISTOPHER JACK JARVIS
Defendant

Catchwords:

Practice and procedure - Motion for judgment in default of appearance pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) - Application for order for sale pursuant to s 126(1) of the Property Law Act 1969 (WA) - Breach of oral agreement between joint tenants - Plaintiff seeking damages to equalise contributions between joint tenants - Judgment entered - Order for sale of land - Turns on own facts

Property law - Application for order for sale of land in lieu of partition by person holding half interest - Section 126(1) of the Property Law Act 1969 (WA) - Order for sale of land - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 126
Rules of the Supreme Court 1971 (WA), O 13 r 1, O 13 r 3, O 13 r 9, O 53 r 3, O 53 r 4

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Ms A Spencer
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Summers Legal
Defendant	:	No appearance

Case(s) referred to in decision(s):

Bombara v Bombara [2010] WASC 314
Bray v Bray [1926] HCA 40; (1926) 38 CLR 542
City of Stirling v Dueschen [2011] WASC 126
David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Faithfull v Woodley (1890) 43 Ch D 287
Martin-Smith v Woodhead [1990] WAR 62
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635
Trainor v Trainor [2021] WASC 40

MASTER RUSSELL:

(These reasons were delivered orally on 20 March 2025 and have been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

Introduction

The plaintiff, Stephen Jarvis, commenced this proceeding by way of writ of summons indorsed with a statement of claim on 11 December 2024 seeking:
(a)judgment against the defendant, Christopher Jack Jarvis, in the amount of $130,235.83; and
(b)an order for sale of land pursuant to s 126(1) of the Property Law Act 1969 (WA) (Act).
The plaintiff also claims ancillary orders relating to the conduct of the sale of the land and his costs of the action and of the application to be deducted from the defendant's share of the proceeds of sale.
By notice of motion filed on 21 January 2025, the plaintiff applies for judgment in default of appearance against the defendant pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
The land, the subject of the plaintiff's application, is a property located at 144 Currie Street, Warnbro, Western Australia, more particularly described as Lot 427 on Plan 10646, being the…

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 Jarvis v Jarvis

Details

AGLC: Jarvis v Jarvis [2025] WASC 271
Case: [2025] WASC 271
Decision Date: 4 JULY 2025

CaseChat Overview and Summary

In the case of Jarvis v Jarvis, the plaintiff, who held an equitable interest in a property, sought damages against the defendant for breach of an oral agreement between joint tenants. The plaintiff sought to equalise the contributions made between the joint tenants. The case was heard in the Supreme Court of Western Australia. The plaintiff argued for an order for sale of the land in lieu of partition under section 126(1) of the Property Law Act 1969 (WA), and the court was required to determine if this was appropriate given the unique circumstances of the case.

The primary legal issue before the court was whether the plaintiff was entitled to an order for sale of the land in lieu of partition, as per section 126(1) of the Property Law Act 1969 (WA). The court had to consider the specific facts of the case to determine if the order was warranted, as the application turned on the unique circumstances presented. The court was also required to assess whether the plaintiff's claim for damages for breach of the oral agreement was valid and whether the judgment in default of appearance was appropriate.

The court found that the application for an order for sale of the land was appropriate given the specific facts of the case. The court acknowledged that the order under section 126(1) of the Property Law Act 1969 (WA) was a discretionary one and that the decision to grant it depended on the circumstances. The court held that the plaintiff's claim for damages for breach of the oral agreement was valid and that the judgment in default of appearance was appropriate. The court ordered the sale of the land and that the proceeds be divided equally between the parties.

The court ordered that the property be sold and that the proceeds be divided equally between the parties. The court further ordered that the plaintiff's claim for damages be assessed and that any amount owed to the plaintiff be paid by the defendant. The court also ordered that the costs of the proceedings be paid by the defendant. The outcome of the case highlights the importance of considering the specific facts of a case when making decisions regarding orders for sale of land and the enforcement of oral agreements between joint tenants.

Orders