John Asztalos v Louis Asztalos No. 4239 Judgment No. SCGRG 92/1171 Number of Pages 15 Real Property Joint Tenancy and Tenancy in Common

[1993] SASC 4239

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J

CWDS
Real property - joint tenancy and tenancy in common - Father and son registered proprietors and joint tenants of house property - son applies for partition of property under 5.69 of Law of Property Act - requests sale instead of partition of property under s.70 of Act - question whether court sees 'good reason to the contrary' so as not to direct a sale of the property - whether court should order that plaintiff vest his half ownership of house property in the defendant in lieu of proceeds of alleged wrongful sale of goods and alleged failure to contribute equally to mortgage payments and other ongoing expenses related to property. Declaration each party holds one undivided moiety. Order for sale and other consequential relief. Law of Property Act Part VIII and Real Property Acts. 74. Calverley v Green (1984) 155 CLR 242; Chatterton v Chatterton (1989) 52 SASR 337; Pemberton v Barnes
(1871) 6 Ch App 685; M'Mahon v Surchell (1846) 41 ER 889; Jones v Jones (1977) 1 WLR 438 and Scapinello v Scapinello (1968) SASR 316, applied. Nullaqine v W.A. Club Inc. (1993) 67 ALJR 739, discussed.

HRNG ADELAIDE, 18-22, 25 October 1993 #DATE 28:10:1993
Counsel for plaintiff:     Mr R D Lawson QC
Solicitors for plaintiff:    Ward and Partners
Counsel for defendant:     Mr O C Isaachsen
Solicitors for defendant:    Murray and Cudmore

ORDER
Orders made.

JUDGE1 Introduction LEGOE J The plaintiff seeks orders pursuant to Part VIII of the Law of Property Act. The plaintiff and his father, the defendant in this action, are the registered proprietors and joint tenants of an estate in fee simple of certain real estate at 418 Portrush Road, Linden Park. The other registered proprietor on Certificate of Title, Register Book Volume No.3900, Folio 57, is the late Maria Asztalos, the plaintiff's mother and the defendant's wife. 2. On this land there is erected domestic premises. There was a shed at the rear of the premises which was demolished and sold in 1991. Photographs taken recently show that the house is in a poor state, no doubt after many years of neglect and lack of any maintenance. The defendant has at all relevant times resided at these premises. His wife, the late Maria Asztalos lived at these premises until her death in March 1983. The plaintiff, who has never married, also lived there until 1992, when as a result of differences or arguments with the defendant, he chose to live elsewhere. He told me that he last spoke to his father, the defendant, (other than over this court case) sometime about March 1992. 3. The defendant was born in Hungary. He is now 71 years of age. After his arrival in Australia in 1948, the defendant had various manual jobs at first in Victoria and later in South Australia. He was working as an electrician for the Department of Defence when he retired in 1979 (on his evidence) though the plaintiff claims his father still worked until 1983. On 1 September 1988, the defendant had a stroke. I observed his stiff left leg when moving in the courtroom with the aid of a walking stick. I shall say something about his evidence later. 4. The plaintiff was born in Victoria on 26 December 1949. He lived with his parents at all times until he left the property, the subject of this dispute, in March 1992. The plaintiff left school at the Intermediate level when he was 16. He then started work. He obtained work at McPhersons in August of 1967 where he stayed for over 15 years. In 1983 he was employed by Pilkingtons ACI as a paymaster. He was retrenched (I so find although the defendant alleges the plaintiff was sacked from Pilkingtons) in October 1990. Letters from Pilkingtons plus the fact that the plaintiff received a large sum of money for long service, annual leave and sick pay confirm this finding. Since October 1990, he has done a small amount of wedding photography, but he has not sought other employment. He says that he was devoting most of his time after retrenchment to the completion of the development of a property at Novar Gardens, which he was involved in with a partner. That development realised a profit for the plaintiff of about $82,000. He has been living on his retrenchment payments from Pilkingtons, plus his profit from the Novar Gardens development and the interest from his Satisfac Credit Union account which he has maintained for a number of years. 5. I shall turn now to the evidence given by both the plaintiff and the defendant surrounding the purchase of the subject property at 418 Portrush Road, Linden Park. The purchase and registration of the house property. 6. In 1977 the parties and the late Maria Asztalos were living in Elmo Avenue, Westbourne Park. On the defendant's evidence, those premises were rented. They had lived there for about 15 years. The defendant said (and this is not disputed on the evidence) that in March 1977 he saw an advertisement for the sale of a house in the newspaper as a result of which he contacted a Mr Ey. The defendant said he and his late wife went to see Mr Ey and discussed the purchase of the house in Portrush Road. He said they signed a contract to purchase the property that day. He claims that he did not speak to his son about the purchase but rather that he left that to his wife. At any rate on 1 March 1977 all three persons signed a second contract to purchase the property from Mr Ey. All three signed the contract at the same time at Mr Ey's home. This contract is exhibit P5A. (The defendant claims that this was a second contract.) 7. The defendant claims he only discussed the purchase with his son when the plaintiff agreed to pay "$18,000 or $80 per week". That was after the contract to purchase the property had been signed by all three parties. 8. The plaintiff was about 28 years old at the time the Portrush Road home was purchased. He had been working for McPhersons for approximately 10 years. The plaintiff calculated his income could have been about $150 per week. He claims he paid board and lodging to his mother when living at Elmo Avenue. 9. The original contract note (exhibit P5A) is dated 1 March 1977. The defendant claimed in evidence that he paid the whole of the first $10,000 of the purchase money which he described as a deposit. The contract note provided for payment of the price by way of deposit being an amount payable on the signing thereof on "3 March 1977" of $10,000. The plaintiff said that he paid $8,000 towards the amount which was payable to Mr Ey, the vendor, on or about 3 March 1977. The plaintiff produced his passbook for the Co-op Building Society (exhibit P23) which is noted on the inside as having been opened on 16 November 1971. The first entry in point of time in exhibit P23 is on 15 April 1975 when there was a credit balance of $2,777.77. That book shows that the plaintiff withdrew $2,000 on 3 March 1977. The plaintiff also said that he had withdrawn other moneys from the same account, namely on 28 November 1975, the sum of $1,500 and on 24 May, 1976, a further sum of $1,500. He claimed that these amounts had been paid to his father because the family were looking for premises to purchase and wished to collect money for that purpose from some time towards the end of 1975 onwards. In addition to these three withdrawals from his bank account, amounting to $5,000, the plaintiff said that he had paid other amounts in cash to his father for the purpose of the purchase of the house. He had accumulated this money from his wages. 10. It was suggested to the defendant in cross-examination that the family had been looking for a house to buy for some period prior to March 1977. The defendant claimed that he had never discussed this with his son at all, but only with his late wife. He claimed that the property which was purchased from Mr Ey had been seen "accidentally" in an advertisement and that he went along with his wife in answer to the advertisement to discuss the purchase of the property. He denied that his son had been urging him to purchase a property for some time because the rent that he was paying on the Elmo Avenue property was wasted. The defendant said he was only paying per week at Elmo Avenue and that the contract to purchase the property "was more than the rent". The defendant also claimed that at the time the property was purchased in March of 1977 he had $27,800 in the building society. When pressed on this statement, he said that it was in a book that he had obtained from the building society in 1992. Four sheets of statement of account from the Co-operative Building Society were produced and ultimately tendered as P8. But the sheets in exhibit P8 clearly relate to the $30,000 mortgage which was taken out and begin on 1 July 1980 on the first sheet, going through to the date when the mortgage was discharged on 10 August 1983. This document shows the larger amounts that were paid off by way of principal during that period. When it was put to him, the plaintiff agreed that he never paid amounts as large as $1,000, $1,800 or $3,000 which are shown in the document. He agreed that these amounts were paid by his father, the defendant. The total amount of these payments by way of principal come to $26,295. I find on the evidence that the defendant paid the sum of $26,295 during the period from 1 July 1980 until the end of August 1983 when the mortgage was discharged. I also find that the defendant did not pay $27,800 from his Co-operative Building Society account towards the initial deposit of $10,000 or in payment of the purchase price for the house in 1977. Further, I find that the plaintiff did pay an amount towards the deposit of $10,000 in March of 1977. He certainly paid $2,000 and on the evidence I find that he paid other amounts which were payments made towards the purchase of the house. I shall deal with the mortgage payments separately. 11. On 13 May 1977, the transfer of the property from Mr Ey was registered to the purchasers. The registration on the duplicate certificate of title, exhibit P1, shows the transfer number 4043169 was registered in the names of Louis Asztalos, electrician, Maria Asztalos, his wife and John Asztalos, paymaster, all of 19 Elmo Avenue, Westbourne Park 5041. Section 74 of the Real Property Act 1886 reads: "74. Two or more persons registered as joint proprietors of an estate or interest in land shall be deemed to be entitled to the same as joint tenants ..." 12. Maria Asztalos died on 11 February 1987 at the Queen Elizabeth Hospital. Her death certificate was tendered as exhibit P2. 13. "The intimate nature of joint tenancy is shown by its two principal features, the right of survivorship and the four unities." See Megarry and Wade The Law of Property 5th edn p.417, ch.9. Joint tenancy gives the registered proprietors the unities of possession, interest, title and time. "No one co-owner had a better right than another so that an action for trespass or for rent or for money had and received or an account would not normally lie." Megarry and Wade (supra) at p.419, footnote 19, citing M'Mahon v Burchell (1846) 2 Ph.127; 41 ER 889 and Thomas v Thomas (1850) 5 Exch 28; 155 ER 13 and Jones v Jones (1977) 1 WLR 438. The taking out of a mortgage and payments of mortgage interest and principal. 14. The memorandum of transfer (exhibit P4) reads that in consideration of the sum of $40,000 being paid to the vendor Mr Ey by the defendant, his wife and the plaintiff in these proceedings, the land is transferred to those persons on 19 April 1977. All three signed the memorandum of transfer as purchasers. 15. Exhibit P3 is the memorandum of mortgage. In consideration of the Co-operative Building Society of South Australia advancing the sum of $30,000 on 24 April 1977, the three mortgagors, namely, the defendant, his wife and the plaintiff in these proceedings executed that deed. That exhibit shows that the mortgagors signed the deed on 14 April 1977. By that deed the mortgagors covenanted to pay the mortgagee $298.50 by equal calendar monthly payments. It is erroneous in law to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed; see Calverley v Green (1984) 155 CLR 242 at 257 per Mason J (as he then was) and Brennan J. As their Honours said at pp.257-258.
    "They (the parties in that action) mortgaged that property
    to secure the performance of their joint and several obligation
    to repay principal and to pay interest. The payment of
    instalments under the mortgage was not a payment of the purchase
    price but a payment towards securing the release of the charge
    which the parties created over the property purchased." See also the remarks of Gibbs CJ at p.246 ibid. The plaintiff said that the mortgage which was payable by instalments of just under $300 per month was paid regularly into the Co-operative Building Society by his late mother. He said there was an arrangement between himself and his parents that he would pay $100 per week. That $100 included $20 for his board at the new premises. He said he commenced paying that $100 per week from the time that the mortgage loan had to be paid in April of 1977. The plaintiff said he paid that $100 regularly each week in cash to his mother. On some occasions he paid the amount to his father. His mother paid the regular monthly instalments to the Co-op Building Society. 16. The plaintiff worked from the time he left school. 17. When he was employed by McPhersons he was paid weekly. In about 1970 he was appointed to train as a paymaster/ personnel officer. When he turned 21 he was appointed to that position. He remained with McPhersons until about 1983, when McPhersons was closed down. His annual earnings at that time was about $20,000. He received some superannuation and other entitlements when he finished with McPhersons. In February 1983 he obtained employment with Pilkingtons ACI. He worked there as a paymaster/personnel officer. His salary there was slightly greater than $20,000 at that time. He remained with Pilkingtons until October of 1990 when as mentioned earlier he was retrenched. The correspondence from Pilkingtons (exhibit P7) shows that the plaintiff received approximately $40,000 when he was retrenched. These were severance and superannuation payments as well as long service leave, sick leave and accrued annual leave. 18. The plaintiff said that he paid the mortgage instalments throughout the whole period. The actual accounts varied throughout the period. The only documentary evidence is exhibit P8 which shows that in July of 1980 the monthly payments were approximately $300. They later increased to $320 and even $330. Those 75 instalments amounted to somewhere between $22,500 and $24,000. It would seem that the total amount paid was closer to the upper figure. 19. I find that on the facts, which are not complete, because there is no complete record of the payments, nor as to who paid them that the plaintiff and the defendant contributed approximately equal amounts to the mortgage instalments and payment of the principal. The defendant paid just over $26,000 and the plaintiff paid $24,000 or a little more. The late Maria Asztalos did not contribute towards the mortgage payments. The use to which the house property was put by the registered proprietors. 20. At all relevant times the parties have lived inand occupied these premises. The late Maria Asztalos lived there until she died in 1987. The defendant still resides at this house property. The plaintiff left there in 1992 and has since then lived elsewhere. 21. Between 1985 and 1989, the plaintiff undertook a development project at Novar Gardens with a partner named Peter Kruger. This development involved the erection of two home units on vacant land which the partners purchased. They engaged contractors to do the construction work. Some of the paving and piping and telephone and electricity work was done by the plaintiff, his partner and the plaintiff's father who helped them with the electrical work. The units were sold in 1989. The plaintiff said he made a net profit of some $82,000 on this project. The plaintiff was keen to involve himself in a further development project but he was unable to find a partner. 22. The plaintiff also said in evidence that he had discussions with his parents about development of the Portrush Road property. He said this was first raised in about 1982. The property was not in good repair. The walls were cracking. The house was moving and the roof had quite a dent in it. The poor condition of the house is confirmed by the photographs which the plaintiff took in July last year. The plaintiff said that the house will eventually have to be demolished. He said there was discussion with his parents about building some home units on the land. He said there was no specific proposal for development before 1990. After his mother died in 1987, he said that he discussed with his father the possibility of constructing two or three units. When he was retrenched from Pilkingtons in October of 1990, he said that there was further discussions about the development. He told his father that he had the money to do it. During the course of discussion with his father he said that his father offered the sum of $100,000 towards the development. The plaintiff estimated that the development would cost in the region of $300,000. He had approximately $200,000 accumulated after receipt of the Pilkingtons retrenchment payment. The plaintiff also said that his preference was to build three units. The plaintiff and the defendant were to live in one of the two units to be built at the rear of the property prior to the demolition of the house. When the main unit, as he put it, had been constructed they would move into the main unit and sell the other two. 23. On the plaintiff's evidence it was decided to engage an architect. The plaintiff decided to engage Mr Genimahaliotis. Mr Genimahaliotis gave evidence and confirmed the fact that he was engaged to design and make the necessary application to the council for the development project. He became a registered architect in 1974. He has been practising as an architect, town planner and holds a builder's licence, Category 1 (unrestricted) since 1987. He said that he was engaged in late 1990 by the plaintiff, to prepare plans for a development at a site, 418 Portrush Road. He inspected the site. His instructions were to establish three units on the site for basic development. He prepared plans and specifications. For that purpose, he went to the site to take some measurements and levels. That was in about February 1991. It was necessary to do this for the council requirements and applications for planning and building approval. Refreshing his memory from a document, he said that the date of his visit was 19 February 1991. Mr Louis Asztalos, the defendant, answered the door. Mr Genimahaliotis said that had seen the defendant on more than one occasion around the Burnside Shopping Centre. He explained to the defendant why he had come and he said that the defendant received him and walked through the house with him and took him to the back yard where most of the levels were to be taken. Mr Genimahaliotis was assisted by his son when he took the levels. He was there for about 30 to 40 minutes. The defendant was in the back yard with them while taking levels. The witness said that he only had a brief conversation with the defendant, mostly about other matters but there was a reference to some of the trees having to be removed from the property. 24. Other witnesses who were involved in the development project and met with the defendant from time to time were included Mr Baige, who was the council officer handling the application for planning approval. He was really concerned with the effect that the application would have on the neighbours. He too, visited the property some time prior to 2 February 1991. He saw a gentleman at the property who was obviously the defendant. He stated the purpose of his visit and met with no opposition or objection to his inspection of the property and inquiries that he was making about the application for development on the property. 25. Mr Sukolowski was a near-by neighbour of the plaintiff and defendant at the relevant time. He had learned about the application for development. He called on the property and spoke to the defendant. He told the defendant that he would be interested in acquiring some of the materials when the house was to be demolished. The defendant, according to Mr Sukolowski made no objection to his inquiries, nor did he refute the fact that the property was to be developed as indicated by the application which had been advertised. Mr Sukolowski visited the property and spoke to the defendant in or about January of 1991. The defendant denied in cross-examination that he had had any such visit from Mr Sukolowski. He further denied that he had had any discussion with Mr Sukolowski about materials to be sold from the house when it was to be demolished. 26. A Mr Kovendy also gave evidence for the plaintiff. He was an old friend of the family and had known the defendant for many years. He gave evidence that when some structure, namely a shed, was demolished in the back yard, he spoke to the defendant who offered to sell him steel pipes which were embedded in concrete. On his evidence the defendant said that he would have to dig up the concrete foundations if he was to take the pipes away. Although this did not relate directly to the application for redevelopment of the property, it is consistent with the plaintiff's evidence that the shed was emptied of certain goods and materials which were stored in it up until some time in 1991 when those goods and materials were shifted into the house itself. The shed, as I said earlier, was then sold and demolished. 27. Some time in 1990, the defendant visited his native land Hungary. On the evidence it does not appear that there was any alteration to the proposals which had been discussed between the parties according to the plaintiff. I shall turn now to the events in 1991 so far as they are apparently relevant to the issues in this case. The events of 1991. 28. As mentioned above, it was in late 1990 that the plaintiff took steps to engage the architect and in 1991 that he took steps to make application to the council for planning approval, and to advertise as required by the legislation the application for planning approval. This resulted in the visits to the property by the witnesses referred to above, Mr Genimahaliotis, Mr Sukolowski, and Mr Baige. 29. The defendant made a second visit to Hungary leaving Australia on 26 May 1991 and returning to the Melbourne airport on 6 August 1991. Prior to his departure, the shed in which the defendant had some goods and materials was taken down and sold. The goods and materials were undoubtedly the property of the defendant. The defendant produced a number of hawker's licences for the years 1979 through to 1986. These licences are for a 12 month period. The last licence which was produced expired on 25 March 1987 about the time that his wife died. The defendant claims in his evidence that the goods that were left on the property when he left for Hungary in late May 1991 were worth somewhere in the region of $106,054. These goods and materials are listed in para.8(i) of the defence and counterclaim. The particulars in that paragraph of the defence are taken from a list prepared by the defendant for the purpose of instructing his solicitors which is exhibit P6 in these proceedings. The defendant alleges in that paragraph of his defence that while he was overseas in Hungary, the plaintiff "wrongfully and without the defendant's permission removed from the house property and sold the following chattels, the property of the defendant ...". 30. The plaintiff in his reply denies those allegations and sets up by way of defence to the counterclaim that some of the items were sold with the consent and involvement of the defendant as part of his participation in the redevelopment agreement referred to above. Further, the plaintiff claims in his reply and defence to the counterclaim that the values attributed to the items were grossly overstated by the defendant in the list, exhibit P6, and that the moneys in fact received for the various items were much less than the alleged values attributed to those items by the defendant. The plaintiff particularised a list of the items that he actually sold during 1991, particularly in June and July and other items late in 1991 and early in 1992. Those items which the plaintiff sold amounted to $9,243.25. 31. The defendant further alleges in his defence, para.8J, that in the months of March 1991 his Commodore motor car was sold for the sum of $10,900 which sum the plaintiff received and has not paid to the defendant. 32. The issue raised in relation to these goods is that the plaintiff, without the permission or consent of the defendant, sold them. As a result the defendant argues that he should be entitled to a declaration that he be the registered sole proprietor of the house property on the basis that the plaintiff's one-half moiety in the property has been exceeded by the proceeds of sale of the goods which the plaintiff wrongfully took and received for himself. Further, the defendant claims that the court should order that the plaintiff execute such documents as are necessary to vest the ownership of the house property in the defendant. 33. As to whether the defendant allowed the plaintiff to sell any of his goods, the witness Mr K. Ling is of some significance. Mr Ling had engaged the plaintiff to take photographs at his wedding in October 1991. Mr Ling had previously worked at the King of the Sea fish cafe diagonally across from the Asztalos premises in Portrush Road. He had seen Mr Asztalos senior on some occasions prior to October 1991 but never spoken to him. Some time before the wedding, he went to the premises by arrangement with the plaintiff, to look at some tools and electrical gear with a view to possibly purchasing some of those goods. He was accompanied by a Mr Steve Barrett. They inspected the goods together with both the plaintiff and the defendant. As he recalled the incident, they walked through the house and went out the back to a shed. He there saw a number of tools like pliers, screw-drivers etc. and some electrical equipment. He said there was a lot of gear there. Some of it was in boxes, some of it was free standing. He said that he spoke to the defendant about the goods that he wanted to sell and the price that he wanted for them. He said there was also a discussion about the development that was going to take place on the property. On his evidence, both the plaintiff and the defendant said that they were going to sell off all the goods and get rid of the gear out of the shed so that they could demolish it and start building. He also said that the plaintiff and the defendant informed him that they were going to put up three units and that Mr Asztalos senior was going to live in one of them and this was going to be a gradual on-going thing. He said that he purchased two jerry cans for $10 each. I accept the evidence of Mr Ling as far as it went. It is some further corroboration of the plaintiff's evidence that both he and his father planned to redevelop the property at about that time, i.e. some time in 1991. 34. Why did the plans to redevelop the property not proceed beyond the planning approval stage? I am not able to make a finding on this. It may well be that a telephone call received by the plaintiff when his father was overseas in Hungary led to arguments about money and whether the defendant would pay for any development when he returned to Adelaide in August 1991. I accept that the plaintiff told his father when he returned to ring a lady called "Julia" in the USA who said that there was a son of the defendant living in the USA who is a medical practitioner. I find that the defendant at first denied that he had a son in the USA, but later admitted the fact to the plaintiff. I reject the defendant's evidence that this other son lived with him and the plaintiff and the plaintiff's mother for a period when they lived in Melbourne. I accept the plaintiff's denial of this fact. 35. I do not have to decide whether the revelation of the fact that the defendant had other offspring (a doctor son in the USA and a daughter living in Hungary) had any bearing on the defendant's attitude about redevelopment. I find that there were plans to redevelop the property which both the defendant and the plaintiff discussed and considered over several years probably up to about the end of 1991. I reject the defendant's denial of these discussions and of his awareness of any plans to redevelop the property. The credibility of the witnesses (defendant and plaintiff) and further findings of fact. 36. The defendant was a most unsatisfactory witness. His positive statements that the plaintiff had (a) contributed nothing by way of board and lodging when the family lived at Elmo Avenue, that (b) he had contributed nothing towards the deposit on the purchase of the Portrush Road property, and that (c) the plaintiff had paid nothing towards the mortgage instalments during the period 1977 till 1983, were all very unconvincing. Those allegations have been refuted by some of the documentary evidence, e.g. the plaintiff's Co-op pass book entries of withdrawals of money at relevant times to the purchase. It could also be said that the defendant's evidence on this was refuted by the fact that the defendant has allowed or at least must have known that the plaintiff's name was registered on the title together with his wife and himself. Further evidence supporting the plaintiff's evidence that the Portrush Road property was to be redeveloped comes from the documents relating to the redevelopment applications made to the council by the plaintiff. These were made in the name of the plaintiff but for premises in the names of the joint registered proprietors, his father and himself. The witnesses Genimahaliotis, Sukolowski, Baige, Kovendy and Ling all refute the defendants denials that there was ever any proposal to redevelop the Portrush Road property. 37. The document relating to the Commodore motor vehicle is consistent with the plaintiff's evidence that this vehicle was in the joint names of the plaintiff and the defendant, and further that the defendant was present and took part in the sale, and that the proceeds of the sale ($10,900) were paid into the Satisfac Credit Union account in the plaintiff's name without objection from the defendant. I would reject the defendant's evidence that the proceeds of sale should have been paid to him. 38. Although I found the plaintiff was at times forgetful or unable to recall details which I would have thought he should remember, I find that the plaintiff's main evidence is supported by documents and his witnesses whom I accept as witnesses of truth. While I do not totally accept all of the plaintiff's evidence, on the main factual issues I find that:

     1. The plaintiff paid board (for his food) to his mother.
     2. He agreed to pay and did pay $100 per week after the
    purchase of and move to the Portrush Road property.
     3. The payment of regular mortgage instalments came from this
    $100.
     4. The evidence is clear that the plaintiff withdrew $2,000
    from his Co-op Building Society account (exhibit P23) on 3 March
    1977 when the contract for the purchase of the Portrush Road
    house required that the deposit bepaid. I find that the
    plaintiff paid to his father a further amount or amounts towards
    the deposit, and that the total amount he paid was at least
    one-third of $10,000 and probably more. I am unable to find
    specifically that the plaintiff paid $8,000 towards the deposit
    of $10,000. I reject the defendant's evidence that the
    plaintiff paid nothing at all towards the deposit.
     5. I reject the defendant's allegation, which he did not
    substantiate clearly in evidence that the plaintiff agreed to
    pay and never did pay "to the defendant one-third of the
    periodic accounts for water and sewer rates and corporation
    rates in respect of the house property". I accept the
    plaintiff's evidence to the extent that there was only a very
    loose arrangement between the family that the plaintiff would
    contribute when he could, which he did.
     6. That the plaintiff paid some of but I am unable to say how
    much of (a) the rates and taxes on the Portrush Road property;
    (b) the telephone accounts; and (c) the electricity accounts.
     7. That the parties did discuss over a period of time prior
    to 26 May 1991, when the defendant went overseas, the
    possibility of redevelopment of the subject property at Portrush
    Road. The possibility of building three separate units was
    discussed. The living arrangements once the units had been
    built was also discussed. It was contemplated that upon
    completion of all units both father and son would live in one of
    the units. I rejectthe defendant's evidence that redevelopment
    was never discussed. The evidence of the witnesses and
    documents overwhelmingly supports the plaintiff's version.
     8. I reject the defendant's evidence that before leaving for
    Hungary in May of 1991, he did not agree to the sale of his
    goods and materials for the purpose of raising funds for the
    redevelopment of the property. I find that the defendant had
    initially offered $100,000 as his contribution towards the
    redevelopment of the property. I find that this was later
    reduced to the sum of $50,000 as alleged by the plaintiff.
    Further, I find that shortly before his departure for Hungary,
    the defendant said that he would only contribute the amount of
    money that the goods and materials which were stored at the
    house realized upon resale. I find that the son, while his
    father was overseas, did negotiate sale of the goods. I find
    that the best value of the goods and materials was the amount
    for which those goods and materials were sold by the son,
    namely, a total of $9,243.25. Included in that amount was dress
    material which the son sold to Bargain Box Fabrics on or about
    13 June 1991 for the sum of $5,500. I totally reject the
    defendant's evidence that the goods which were in the house when
    he left for Hungary were all those listed in the particulars of
    para.8I of the defence. In particular I reject the defendant's
    evidence that there was 10,000 metres of mixed materials for
    which he had paid $60,000. I find that all of the mixed
    materials that were there when the defendant left for Hungary
    realized their best value at that time. Further, I reject the
    defendant's evidence that there was any crystal glasses which he
    said he had purchased in London many years earlier as a present
    for his wife. I find contrary to the defendant's evidence, that
    the Hungarian doll listed in the particulars was given to the
    plaintiff's girlfriend's daughter at around Christmas time of
    1990 and that the plaintiff never wrongfully took and disposed
    of that item or any of the other items listed in para.8I of the
    defence.
     9. I find that the defendant was aware of the fact that the
    Commodore motor car was to be sold and that the plaintiff had
    advertised that vehicle for sale. I find that it was registered
    in the name of both the plaintiff and the defendant and that it
    was sold by the plaintiff in the presence of and with the
    knowledge of the defendant. Further, the proceeds of the sale
    of that vehicle were paid into the Satisfac Credit Union account
    to the knowledge of and with the agreement of the defendant.
    Defence of good reason claiming that the court should not make
the order for sale of the property. 39. The plaintiff seeks orders pursuant to s.69 of the Law of Property Act, namely:
     (a) a declaration that the plaintiff and the defendant
    each hold an undivided moiety as joint tenants in the property.
     (b) That there be a partition sale of the property and the
    improvements thereon.
     (c) That the sale be conducted in such manner and upon such
    terms and conditions and by such licensed land agent or agents
    as may be agreed upon between the parties.
     (d) That in default of agreement between the parties, the
    property and the improvements shall be sold by public auction in
    accordance with the conditions of sale by auction as approved by
    the Real Estate Institute of South Australia Incorporated by
    such auctioneer and at such reserve prices as be agreed between
    the parties, or in default of agreement, as may be determined by
    a Master on the application of either of them.
     (e) That the costs of advertising the sale by auction (if
    required) be limited to the sum of $2,000.
     (f) That if the property and improvements thereon are not sold
    at the auction or within such further time thereafter as the
    auctioneer may have the sole right to sell, the parties shall be
    at liberty to each nominate one land agent for the purpose of
    arranging a sale by private treaty at the price and upon such
    terms and conditions as may be agreed upon between them or in
    default of agreement, as may be determined by a Master on the
    application of either of them.
     (g) That following the sale of the property and improvements
    the proceeds of the sale, after deduction of all proper
    expenses, be divided equally and that the plaintiff and the
    defendant shall each receive one half. Further, the plaintiff
    seeks an order that the defendant pay the plaintiff's costs. 40. Section 69 of the Law of Property Act sub-s.(1) incorporates the common law giving the court a discretion to order a partition of land or other property and to give all necessary or proper directions. 41. It is common ground and accepted by the defendant that the parties are joint tenants. Further, that each party by survivorship took one half of the one-third share of the late Maria Asztalos. The background and history of the section is conveniently discussed in Nullagine v WA Club Inc (1993) 67 ALJR
739 at 741-743 in the judgment of Brennan J, and at p.754 per Toohey J. 42. Section 70 of the Act provides inter alia that where in an application for partition, one of the interested parties to the extent of one moiety or upwards in the property requests the court to direct a sale of the property and distribution of the proceeds instead of a division of the property between or among the parties interested "the court shall, unless it sees good reason to the contrary, direct a sale of a property accordingly and shall give all necessary or proper consequential directions". The plaintiff applied for sale of the property under this section through counsel during the opening address. The defence challenges the plaintiff's application for a sale on the basis that there is, on the facts of the case, good reason to the contrary. Counsel for the defendant drew the attention of the court to s.71 whereby in any case where the court is asked to direct a sale of the property then the court may, if it thinks fit, unless the other party interested in the property (or some of them) undertakes to purchase the share of the party requesting a sale, direct a sale of the property and give all necessary or proper directions. In this case, the defendant gave no such personal undertaking in evidence. But counsel for the defendants offered orally at the close of the evidence to purchase the plaintiff's interest on condition that the amount of money allegedly owing by the plaintiff to the defendant for the wrongful sale of the defendant's goods was offset against the plaintiff's share in the property; this would entitle the defendant to the whole of the property without further payment for the plaintiff's share. This was foreshadowed at the time of the opening of the case by counsel for the defendant and was formally offered in court at the close of evidence at the beginning of counsel's address. Counsel for the plaintiff indicated after taking instructions that the plaintiff would not accept that offer. 43. In Pemberton v Barnes (1871) 6 Ch.Ap.685 at 692, Lord Hatherly LC discussed what he described as the inconveniences connected with partition suits. There is no doubt that hardship often results. The jurisdiction that the court exercises under Part VIII of the Law of Property Act is an equitable jurisdiction, see Chatterton v Chatterton (1989) 52 SASR 337 at 340-341 per Jacobs J. In Pemberton v Barnes (supra), Lord Hatherly LC rejected the fact that the two part-owners of the land in that case came from a common ancestor, and the fact that the testator had given the estate to them as land, as good reason for rejecting the application of one party for an order for sale of the land (pp.694-695). Furthermore, the mere fact that one of the owners of one moiety objected to sale was not a good reason against sale on a sound construction of the Act (ibid at 695). The Lord Chancellor went on to point out that the defendants in that case were not wholly without a remedy. 44. In this case, the good reasons relied upon by the defendant for the court not to order sale of the property are all based upon the defendant's allegations that the plaintiff made no contribution at all by way of board at any stage, nor towards the deposit of $10,000 paid for the property, nor towards the mortgage instalments. Further the defendant says that the plaintiff was in breach of his agreement to pay to the defendant and his late wife the total sum of $18,000. The defendant says the plaintiff never paid any of this. As I have made express findings rejecting the defendant's account on all of these matters, I reject the defence that these matters constituted good reason. 45. Other grounds relied upon by the defendant as good reason for not ordering a sale are the allegations in para.8 of the defence that the plaintiff was to, but never did, pay an amount of $40 a week (for board) as well as paying one-third of the periodic accounts for water and sewerage and corporation rates in respect of the house property together with one-half of the telephone accounts in respect of the telephone on the house property. Having made findings above rejecting these claims by the defendant, I further rule that these do not constitute good reasons for rejecting a sale in this case. 46. Finally, in para.8I of the defence, the defendant pleads the plaintiff wrongfully and without the defendant's permission, removed from the house, property and goods which were sold as particularised in that paragraph. I have already made findings contrary to the defendant's allegations in this regard and accordingly reject this as good reason for refusing an order for sale in this case. 47. In Pemberton v Barnes (supra) Lord Hatherly LC said at p.693:
    "(T)he onus is thrown on the person who says that the Court
    ought not to order a sale, to shew some good reason why it
    should not do so; otherwise, the Court is bound to order it.
    ... if the votes are equally divided, one half of the persons
    interested in the property desiring a sale and the other half a
    partition, then the half requiring the sale shall have the
    preponderating voice, and the Court shall be bound to give them
    a sale wholly irrespective of the third section (i.e. 'where
    there is extreme inconvenience in partition' see p.692). But
    still there is a certain discretion left to the Court, so that
    the Court can refuse a sale where it is manifestly asked for
    through vindictive feeling, or is on any other ground
unreasonable". 48. In Bray v Bray (1926) 38 CLR 542 at 546, Higgins J said: "... I regard a sale as an alternative to a partition and not to the status quo". 49. I note the remarks in Scates v Scates (1962) VR 398 at 399 by Lowe J who questioned the soundness of Lord Hatherly's remarks that "a certain discretion (is) life". 50. I adopt and apply in this case the statement of Bright J in Peck v Peck
(1965) SASR 293 at 299-300:
    "(P)artition proceedings are to be determined according
    to the strict legal rights in appropriate cases ... So also I
    suppose that an order for sale may be deferred for a limited
    period in partition proceedings. But this is merely the
deferment of enforcement ..." 51. As to the counterclaim which relies on the allegations in para.8 of the defence, I am of the opinion that the propositions that the plaintiff owed the defendant (a) the sum of $18,720 claimed for board alleged in para.8G of the defence and (b) the sum of $1,721 for corporation rates and water and sewer rates also referred to in para.8G of the defence, and (c) the sum of $2,285 being one-half of the telephone accounts referred to in para.8G have not been established as a fact. In any case they are not recoverable in law; see Scapinello v Scapinello (1968) SASR 316 at 317 and 319-324 per Bright J. In William M'Mahon and wife v Burchell and Anor (1846) 41 ER 889, it was held that mere occupation by one of several tenants in common of an estate, if unaccompanied by exclusion, does not make him liable for rent to his co-tenants; see also Jones v Jones (1977) 1 WLR 438 at 442 per Lord Denning MR. Conclusion. 52. On the above findings and on the authorities discussed I hold that:
     1. The plaintiff and the defendant each hold an undivided
    moiety as joint tenants in the property.
     2. The defendant has failed to establish "good reason to the
contrary" pursuant to section 70 of the Law of Property Act.
     3. There be an order for sale of the property. I can find no
    reason to defer the sale (cf. Peck v Peck (supra) nor do I
    consider that there is any reason to take into account ad
    misericordia circumstances see Peck v Peck (supra) at p.300.
     4. The counterclaim is dismissed. I further direct that the
    plaintiff bring into court draft minutes of order for settling
    these orders and the consequential directions necessary for
    sale. 53. I shall hear the parties on the question of costs of the action.