Jones v Timmins
[2025] WASC 187
•20 MAY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JONES -v- TIMMINS [2025] WASC 187
CORAM: MASTER RUSSELL
HEARD: 25 SEPTEMBER 2024
DELIVERED : 20 MAY 2025
FILE NO/S: CIV 1339 of 2024
BETWEEN: LINDA ELLEN JONES
Plaintiff
AND
GERARD FRANCIS TIMMINS
Defendant
Catchwords:
Practice and Procedure - Summary judgment - Application for order for sale of land pursuant to s 126(1) of the Property Law Act 1969 (WA) - Application opposed - Factual dispute as to contributions made by the parties - Counterclaim for direction for valuation of plaintiff's share of the land pursuant to s 126(3) of the Property Law Act 1969 (WA) - Issue raised as to whether joint tenancy severed by agreement – Application for summary judgment dismissed - Turns on own facts
Legislation:
Property Law Act 1969 (WA) s 126, s 126(1), s 126(3)
Rules of the Supreme Court 1971 (WA) O 14, O 14 r 1(1), O 14 r 2(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr P Lafferty |
| Defendant | : | Mr J C Yeldon |
Solicitors:
| Plaintiff | : | Keay Legal |
| Defendant | : | HLB Lawyers |
Cases referred to in decision(s):
Agostina Teresa Raphael as executor of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312
Bailey v Pattinson (Unreported, SCWA Library No 1566/94, 23 November 1994)
Bombara v Bombara [2010] WASC 314
Brown v Toubia [2024] WASC 107
Burton v Camden London Borough Council [2002] 2 AC 399
Dale v McCullough (1988) ANZ Conv R 67
Deputy Commissioner of Taxation v Lafferty [2017] WASC 257
Fels v Rural Bank [2020] WASCA 151
Giacci v Giacci Holdings Pty Ltd [2010] WASC 349
Holland Investments Pty Ltd v Motorways (1984) Pty Ltd (Unreported, WASC, Library No 920557, 4 November 1992)
Martin-Smith v Woodhead [1990] WAR 62
McPherson v Hancock (Unreported, WASC, Library No 9173, 6 December 1991)
Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109
Muschinski v Dodds (1985) 160 CLR 583
Nullagine Investments Pty Ltd v The Western Australian Club Inc (Unreported, WASC, Library No 8523, 3 October 1990)
Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635
Orrman v Orrman [No 2] [2008] WASC 17
Perman v Maloney [1939] VLR 376
Pitt v Jones (1880) 5 App Cas 651
Singh v Kaur Bal [No 2] [2014] WASCA 88
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Squire v Rogers (1979) 39 FLR 106
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Trainor v Trainor [2021] WASC 40
Wallingford v Mutual Society (1880) 5 App Cas 685
Westpac Banking Corporation v Anderson [2017] WASC 106
Willis v The State of Western Australia [No 3] [2010] WASCA 56
MASTER RUSSELL:
Introduction
The plaintiff, Linda Ellen Jones, commenced this proceeding by writ of summons indorsed with a statement of claim on 25 March 2024, seeking an order for the sale of land in lieu of partition pursuant to s 126(1) of the Property Law Act 1969 (WA) (Act).
The land the subject of the application is situated at and known as 69 Burniston Street, Scarborough in the State of Western Australia, being the land described as Lot 1 on Survey Strata Plan 54742 and being all that piece of land comprised in Certificate of Title Volume 2694 Folio 188 (Property).
Ms Jones and the defendant, Gerard Francis Timmins, are the registered proprietors of the Property as joint tenants.[1]
[1] Affidavit of Linda Ellen Jones sworn 24 May 2024 (Jones May 2024 Affidavit) [5], 'LEJ-1'.
Mr Timmins entered an appearance on 30 April 2024 and filed a defence on 16 May 2024.
On 27 May 2024, Ms Jones applied for summary judgment pursuant to O 14 of the Rules of the Supreme Court 1971 (WA) (RSC) for an order pursuant to s 126 of the Act that the Property be sold, and the proceeds of sale be paid into court (Application).
The plaintiff also sought leave to bring the Application out of time, it having been filed six days later than the 21‑day period prescribed by O 14 r 1 RSC.
In support of the Application, Ms Jones relies on her affidavits sworn on 24 May 2024 and 26 June 2024 and an outline of submissions filed on 26 June 2024.
Mr Timmins opposes the Application. He relies on affidavits sworn by him on 19 June 2024 and 31 July 2024, and an outline of submissions filed on 1 August 2024.
Although an application had been made for summary judgment, on 18 June 2024, an amended defence and counterclaim was filed on behalf of Mr Timmins.
Mr Timmins claims that Ms Jones only contributed $1,000 to the purchase price of the Property and has made no contribution to the mortgage payments or in respect of the maintenance of the Property. He claims, by way of counterclaim, an order under s 126(3) of the Act that Ms Jones' share of the Property be valued and undertakes to pay Ms Jones her share after the valuation.
For the reasons that follow, it is not appropriate in my view to determine this matter summarily and the Application should be dismissed.
Leave to bring the Application out of time
Order 14 r 1(1) RSC requires an application for summary judgment to be made within 21 days after an appearance has been filed, or any later time with leave of the court.
The 21-day time limit to bring an application for summary judgment reflects the view that such applications should be brought at an early stage of the proceedings, before too much expense has been incurred. Where there is a delay, it must ordinarily be explained, and the onus is on the applicant to demonstrate that it is justifiable in the circumstances. Any prejudice to the other party caused by the delay and the prospects of the application are also relevant factors.[2]
[2] See Westpac Banking Corporation v Anderson [2017] WASC 106 (Westpac v Anderson) [38], and the authorities referred to.
The Application was brought at an early stage of the proceedings, less than one week outside the 21‑day time limit imposed by O 14 r 1 RSC. The defendant took no position in relation to the plaintiff's application for leave to bring the Application, saying it neither opposed it nor consented to it. There is no suggestion or evidence of any prejudice to the defendant caused by the short delay.
In the circumstances, I was satisfied that the plaintiff should have leave to bring the Application out of time and that the time for doing so should be extended to the date of filing, 27 May 2025. An order was made to that effect and my decision in relation to the Application was reserved.
The plaintiff's claim and evidence filed in support of the Application
The statement of claim is brief. Other than describing the Property and stating that the plaintiff and the defendant are the registered proprietors of it as joint tenants, it states that:
1.Ms Jones wishes to sell her interest in the Property as soon as practicable.[3]
2.In October 2023, she requested Mr Timmins' consent to a joint sale of the Property or that he make an offer to purchase her interest in it. This was done by a letter from Ms Jones' solicitors to Mr Timmins dated 30 October 2023.[4]
3.Mr Timmins has not responded to that request.[5]
4.Ms Jones seeks an order that the Property be sold pursuant to s 126 of the Act.[6]
[3] Statement of claim [3].
[4] Statement of claim [4].
[5] Statement of claim [5].
[6] Statement of claim [6].
In the prayer for relief, Ms Jones seeks an order that the Property be sold, that she have conduct of the sale and other orders relating to the sale of the property, including that each of the parties shall have liberty to bid at auction or to offer to purchase the Property and that the net proceeds of sale, after payment due to any encumbrancers and all other costs, charges and expenses, be paid into court.
At the hearing of the Application, counsel for Ms Jones sought orders to that effect, save that the Property be sold at auction.
Ms Jones attaches a copy of the letter referred to in the statement of claim to her affidavit sworn on 24 May 2024.[7] She deposes to having paid the deposit to purchase the Property from her own funds and that she made contributions to the mortgage in respect of the Property from time to time.[8] She does not state how much the deposit or the purchase price of the Property was.
[7] Jones May 2024 Affidavit [6] - [7], 'LEJ-2'.
[8] Jones May 2024 Affidavit [9].
Ms Jones deposes that she believes there is no defence to her claim and the relief sought in the statement of claim.[9]
[9] Jones May 2024 Affidavit [11] - [12].
The defendant's position and evidence filed in opposition to the Application
Mr Timmins opposes the application. He deposes that:
1.He and Ms Jones purchased the Property for $82,500 in 1990, which was funded by a joint deposit of $2,000 and a joint mortgage from the Commonwealth Bank of Australia (CBA).[10]
2.At the time they purchased the Property, Mr Timmins and Ms Jones were in a de facto relationship.[11]
3.Mr Timmins made all payments under the mortgage from 'day one'. The payments were paid from an account he held with CBA. Ms Jones was not working at the time.[12]
4.The amount owing on the mortgage, as at June 2024, was around $160,000 and he was paying 11.4% interest. He has been unable to lower the rate of interest as Ms Jones is still on the title and has not cooperated with him to refinance.[13]
5.In 1993, he had been working away in Darwin and returned to find that Ms Jones had left the Property. It was vacant and boarded up.[14]
6.Other than while working away in Darwin, he has been living at the Property and he has paid all expenses and outgoings, including to maintain and improve the property and all mortgage repayments, since the Property was purchased.[15]
7.Mr Timmins has used his building expertise and funds to add an extra bedroom, bathroom, front living room, has re‑cladded the whole house, brick paved around the house and replaced the roof tiles with Colorbond roofing.[16]
8.Ms Jones has made no payment for the improvements to the Property or in respect of the council rates, water rates, property maintenance or the mortgage repayments.[17]
9.The Property has been Mr Timmins' principal place of residence and home for 33 years, except for the period of time he was working in Darwin and during holidays to Ireland. Ms Jones has not lived at the Property since about April 1993.[18]
[10] Affidavit of Gerard Francis Timmins sworn 19 June 2024 (Timmins June 2024 Affidavit) [2].
[11] Timmins June 2024 Affidavit [4].
[12] Timmins June 2024 Affidavit [3] - [5], Attachment 'A'.
[13] Timmins June 2024 Affidavit [6].
[14] Timmins June 2024 Affidavit [7] - [8].
[15] Timmins June 2024 Affidavit [9].
[16] Timmins June 2024 Affidavit [10] - [11].
[17] Timmins June 2024 Affidavit [12].
[18] Timmins June 2024 Affidavit [13] - [14].
Mr Timmins also deposes to medical issues, which he says require him to be close to a hospital and his doctor.[19] He says he does not want to move from the Property. Rather than an order being made for sale, he undertakes to purchase Ms Jones' share of the Property and seeks a direction for a valuation of her share pursuant to s 126(3).[20] Mr Timmins refers to s 126(3) of the Transfer of Land Act, which I take to be a reference to s 126(3) of the Act, consistent with the submissions made on his behalf.
[19] Timmins June 2024 Affidavit [15] - [16].
[20] Timmins June 2024 Affidavit [17] - [18].
The plaintiff's and defendant's responsive evidence
Ms Jones and Ms Timmins each filed further affidavits in response on 19 June 2024 and 31 July 2024 respectively. It is clear from the affidavits filed that there are several factual matters in dispute.
Ms Jones deposes that she and Mr Timmins lived together in a de facto relationship from 1989.[21] She says that when they began living together, Mr Timmins was not employed, and they drew on her savings from time to time to meet living expenses. Ms Jones had savings of approximately $28,540 which she paid into an account in their joint names.[22]
[21] Affidavit of Linda Ellen Jones sworn 26 June 2024 (Jones June 2024 Affidavit) [4].
[22] Jones June 2024 Affidavit [5] - [8].
Ms Jones deposes that the purchase price of the Property was $87,500, funded with a joint loan secured by mortgage with CBA for $70,000 and the deposit of $12,500 was paid from money she had transferred into an investment account in their joint names.[23] She cannot remember how the balance of $5,000 was paid but says it was unlikely to have been paid by Mr Timmins as they were living off Ms Jones' savings at the time.[24]
[23] Jones June 2024 Affidavit [9] - [12], [16].
[24] Jones June 2024 Affidavit [17].
Mr Timmins denies they lived off Ms Jones' savings. He says he was running a bricklaying business and supported Ms Jones and her children at that time.[25] His recollection is that the deposit for the Property was $2,000, which was paid jointly by him and Ms Jones. He refers to Attachment A to his June 2024 affidavit and accepts that $12,500 of the purchase price was paid from a joint account together with the mortgage in their joint names for $70,000 and that, as such, Ms Jones contributed a further $6,250 towards the purchase price ($7,250 in total).[26]
[25] Affidavit of Gerard Francis Timmins sworn 31 July 2024 (Timmins July 2024 Affidavit) [3], [6].
[26] Timmins July 2024 Affidavit [6] - [7].
It appears from the copy of the letter from CBA dated 12 April 1990 attached to Mr Timmins' June 2024 affidavit[27] that the amount of $82,500 was paid by Commonwealth Bank - $70,000 debited to a loan account and $12,500 from an investment account. There is no reference to any deposit, which is likely to have been paid before settlement.
[27] Timmins June 2024 Affidavit, Attachment A.
Ms Jones denies she abandoned the Property. She deposes that she left in July 1993 following an incident. Mr Timmins denies the allegations regarding the incident deposed to by Ms Jones. The evidence concerning the incident is not directly relevant to the determination of the Application or the relief sought, and it is not necessary that I refer to it in these reasons.
Ms Jones deposes, in general terms, to an agreement between her and Mr Timmins, in or about 1997, for the Property to be subdivided into two lots on the basis that the joint tenancy would be severed and they would each become the owner of the proposed lots. She says she recalls signing papers presented to her by Mr Timmins to enable the subdivision to proceed,[28] but she does not say when. Ms Jones says she discovered later (but does not say when) that Mr Timmins had sold one of the subdivided lots to his sister for $300,000. She says that contrary to their agreement, she did not become the owner of a subdivided lot and did not receive any money from the sale.[29]
[28] Jones June 2024 Affidavit [27] - [29].
[29] Jones June 2024 Affidavit [30].
Attached to Ms Jones' June 2024 affidavit is a copy of a mortgage dated 6 May 2005 to GE Mortgage Solutions Limited registered on the title to the Property.[30] Ms Jones deposes that, in 2005, she agreed to sign mortgage documentation as Mr Timmins had told her he needed a new roof on the Property. She says she was not aware at the time that he borrowed $200,000 to be secured by the Mortgage, some of which appears to have been used to discharge the first mortgage they obtained to purchase the Property.[31]
[30] Jones June 2024 Affidavit [32] - [33], Attachment 'B'.
[31] Jones June 2024 Affidavit [34] - [37].
Mr Timmins refutes Ms Jones' evidence relating to the subdivision of the Property and that there was any agreement that Ms Jones would obtain the subdivided land. He says that he recalls contacting her and asking her to sign the forms and that she signed them in front of him. He said that Ms Jones also signed the forms permitting the sale of the subdivided land to his sister.[32] He does not say when Ms Jones signed 'the forms' and no such documents have been produced by either Mr Timmins or Ms Jones. Mr Timmins does not address Ms Jones' evidence about the alleged agreement to sever the joint tenancy.
[32] Timmins July 2024 Affidavit [9].
Mr Timmins deposes that the Property is presently leased to his cousin, who is also his carer, and her daughter. He says he lives there with their permission.[33]
[33] Timmins July 2024 Affidavit [10], Attachment 'A': copy of a residential tenancy agreement between Mr Timmins as lessor and Sonia and Nicola Roche dated 21 January 2022.
Ms Jones deposes that she too is in poor health and unable to obtain a disability pension because she owns the Property. She says she needs to sell the Property to access funds for her current and future financial support.[34]
[34] Jones June 2024 Affidavit [38] - [41].
Overview of the parties' submissions
As outlined, both parties refer to medical issues, their financial and other needs. Whilst I acknowledge the importance of those matters to the parties, they are not matters that bear on the determination of the Application and whether an order for sale should or should not be made under s 126(1) of the Act.
It was submitted on behalf of Ms Jones, in effect, that matters relating to the parties' respective contributions are not relevant and that, as a joint tenant of the Property, she is entitled to an order for sale under s 126(1) of the Act. Ms Jones says the court has no discretion and an order for sale must be made. She refers to earlier decisions of this court in which it was stated that:
… s 126(1) of the Act does not embody a broad discretion in the court to grant or refuse an order for sale. What the section anticipates is an order for sale or an order for partition of the property. There is no other alternative available. …[35]
[35] Trainor v Trainor [2021] WASC 40 (Trainor v Trainor) [4] - [6] (Sanderson M); Brown v Toubia [2024] WASC 107 [8] (Russell M).
Mr Timmins says a sale of the Property is not in the parties' interests. It was submitted on his behalf, in effect, that an order for sale should not be made on a summary basis when there are issues as to the parties' respective shares or interests in the Property. Rather, it was submitted that, in circumstances where Mr Timmins has undertaken to purchase Ms Jones' share, the court has power under s 126(3) of the Act to direct a valuation of Ms Jones' share, taking into account the parties' respective contributions.
Counsel for Ms Jones submitted that the authorities do not support Mr Timmins' position, s 126(3) of the Act does not operate to compel Ms Jones to sell her share of the property to Mr Timmins at a valuation directed by the court or inhibit the court's power to make an order for sale under s 126(1).[36]
[36] Referring to Giacci v Giacci Holdings Pty Ltd [2010] WASC 349 (Giacci v Giacci Holdings) [33] - [38], [44].
Counsel for Mr Timmins clarified that Mr Timmins is not seeking to compel Ms Jones to sell her share at a valuation directed by the court but is seeking a direction that her share in the Property be valued.
It was submitted on behalf of Ms Jones that any factual dispute between the parties as to the contributions made by them are matters that can be determined after the Property has been sold, and the proceeds of sale be paid into court pending the resolution of any argument as to the parties' respective shares or interests in the proceeds.
Applicable principles - summary judgment
The legal principles that apply to an application for summary judgment are well established and were not in dispute.
An application under RSC O 14 must be supported by an affidavit verifying the facts upon which the claim is based and stating that, in the deponent's belief, there is no defence to the claim.[37]
[37] RSC O 14 r 2(1).
The power to grant summary judgment should be exercised with great care. Summary judgment should only be granted in the clearest of cases, where there is no real issue to be tried. If it is not possible to say, on the whole of the material, that there is no question to be tried, the defendant should have the opportunity to defend the action.[38]
[38] Westpac Banking Corporation v Anderson [104] (Pritchard J) and the authorities referred to.
As the Court of Appeal said in Sutton Investments Pty Ltd v Realistic Investments Pty Ltd:[39]
Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde[2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].
[39] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].
The plaintiff bears the legal burden of persuading the court that the claim is a good one and there is no defence to it. If the plaintiff's affidavit in support of an application makes out a prima facie case on these two matters, the evidentiary burden passes to the defendant to show there is an arguable defence or another reason there ought to be a trial.[40]
[40] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 (Lafferty) (Tottle J) [54] and the authorities referred to.
A defendant seeking to demonstrate an arguable defence or some other reason why there ought to be a trial must condescend to particulars and provide sufficient details of their defence.[41] Where an issue or question is raised, summary judgment should only be granted in favour of the applicant where they can demonstrate that the question will certainly be resolved in their favour.[42]
[41]Lafferty [54], citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Brinsden J), 113; Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).
[42] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] ‑ [55]; Fels v Rural Bank [2020] WASCA 151 [27].
The issues
The overarching issues that arise for determination in respect of the Application may be summarised as follows:
1.Has the plaintiff established a prima facie case that she is entitled to an order for sale of the Property pursuant to s 126(1) of the Act?
2.If so, is there an arguable defence or some other reason why there ought to be a trial of the action?
Has the plaintiff established a prima facie case that she is entitled to an order for sale of the Property pursuant to s 126(1) of the Act?
Section 126 of the Act provides, relevantly:
126 In action for partition court may direct land to be sold
(1)Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
(2)The Court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the Court that, by reason of the nature of the land, or the number of the parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstance, a sale of the land would be for the benefit of the parties interested.
(3)The Court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale; and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.
(4)On directing a sale or valuation to be made under subsection (3) the Court may give also all necessary or proper consequential directions.
…
The history and development of s 126 of the Act has been considered in earlier decisions of this court. It is not necessary that I repeat it, but it is instructive in understanding the purpose and operation of the provision. One such case is Giacci v Giacci Holdings,[43] which was referred to by counsel for Ms Jones, in which his Honour referred in turn to Professor Butt's text, Land Law,[44] and to the High Court's examination of the Western Australian legislation in Nullagine Investments Pty Ltd v The Western Australian Club Inc,[45] amongst other authorities.
[43] Giacci v Giacci Holdings [29] - [32] (EM Heenan J).
[44] Butt P, Land Law (5th ed, 2006) [1495].
[45] Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 (Nullagine Investments).
The purpose of s 126(1) (and of the legislation which preceded it) is to provide a remedy for a co-tenant who, in the event of a dispute with another co‑tenant, may otherwise be without an adequate remedy to protect their share or interest in the land.[46]
[46] Nullagine Investments, 650 (Brennan J), 656 ‑ 657 (Deane, Dawson & Gaudron JJ).
In Nullagine Investments,[47] Brennan J said in dissent, on an issue that was not in dispute, that the consequence of an order under s 126(1), whether for sale or for partition of the land, is to 'terminate the co‑ownership of the land and break any deadlock affecting its occupation and use of its disposition.'
[47] Nullagine Investments, 650.
As has been observed, s 126(1) does not embody a broad discretion to grant or refuse an order for sale. It provides that, if the applicant has a half interest (or upwards) in the land to which the action relates, and that party requests the court to direct a sale in lieu of partition, the court shall make such an order unless it sees good reason to the contrary.[48]
[48] See Agostina Teresa Raphaelas executor of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312 [70] (Seaward J), referring to Trainor v Trainor [4] - [5]; Bombara v Bombara [2010] WASC 314 [79] - [81].
It is trite that property may be owned as tenants in common or as joint tenants. Whether co-ownership of property is as tenants in common or joint tenants, there is 'unity of possession' in that each co-owner has the right to occupy the whole of the property in common with the other co‑owner or co-owners.[49]
[49] Singh v Kaur Bal [No 2] [2014] WASCA 88 [30], referring to Butt P, Land Law (6th ed, 2010) [1408]; Nullagine Investments, 643 - 644.
A tenant in common has a distinct share in the property, albeit an 'undivided' share.[50] Often where there are two tenants in common, they will hold their interest in equal shares. However, that will not always be the case. They may have agreed something different and each hold unequal shares. For example, if one party has contributed more than the other, one may have a 25% share and the other 75%, or such other share as may be agreed.
[50] Singh v Kaur Bal [No 2] [31], referring to Nullagine Investments, 643.
A tenant in common cannot sell the entirety of the property without the other's consent or by order of the court, although each can sell or transfer their own separate share either to a third party or to their co-owner.[51] A tenant in common's share of a property forms part of their estate upon their death.
[51] Singh v Kaur Bal [No 2] [32], referring to Nullagine Investments, 643 - 644; Burton v Camden London Borough Council [2002] 2 AC 399, 408.
In general terms, in a joint tenancy, each co-owner has an equal and undivided interest in the whole property and, upon the death of one joint tenant, the property automatically passes to the surviving tenant or tenants.[52] Although, joint tenants do not have proportionate shares in the land they co-own in that capacity, for the purpose of an application under s 126 of the Act, and for certain other purposes, they are treated as having a share in the land commensurate with that of the other joint tenant or tenant. As such, where there are two joint tenants, they will each be taken to have one-half share.
[52] See Singh v Kaur Bal [No 2] [33] - [35].
In Holland Investments Pty Ltd v Motorways (1984) Pty Ltd,[53] White J stated that, in his opinion, 'the law of this State is that an equal joint tenant of jointly-owned property is entitled as of right to an order for the sale of the property unless the Court sees good reason to direct an actual partition by physical division of the property.'[54]
[53] Holland Investments Pty Ltd v Motorways (1984) Pty Ltd (Unreported, WASC, Library No 920557, 4 November 1992) (Holland Investments) .
[54] Holland Investments, 21.
In this case, it is not in dispute that the parties are recorded as the registered proprietors of the Property as joint tenants. As such, taking the certificate of title at face value, Ms Jones is a party interested in the land the subject of the action to the extent of a half share or upwards, and is entitled to an order for the sale of the Property and a distribution of the proceeds instead of partition (a division of the land between its co-owners), unless the court sees good reason to the contrary.
Generally, unless there is evidence before the court that the land can be partitioned, where a party is entitled to a half interest or more, an order for sale will be made.
If Ms Jones is a joint tenant with a half share or interest in the Property, she is, prima facie, entitled to an order under s 126(1) of the Act. However, that is not the end of the enquiry. I must also consider whether Mr Timmins has an arguable defence to the claim or whether there is some other reason why there ought to be trial of the action.
Is there an arguable defence or some other reason why there ought to be a trial of the action?
Mr Timmins seeks to defeat the Application on the basis there is a dispute as to the parties' respective contributions to the Property, which he says should be resolved before any sale is ordered. Further, Mr Timmins relies on his undertaking to purchase Ms Jones' share of the Property and counterclaims for a direction pursuant to s 126(3) of the Act for a valuation of her share.
In Giacci v Giacci Holdings, EM Heenan J considered the question of whether or not the court is empowered under 126(3) to order that an unwilling co-owner should sell his or her share to other co-owners at a valuation, although dealing with a different set of circumstances. By reference to the authorities referred to, his Honour concluded, in effect, that it has frequently been recognised that s 126(3) is an independent section and does not empower the court to compel any party interested to sell his share at a valuation and does not inhibit the powers of the court under s 126(1).[55]
[55] Giacci v Giacci Holdings [33] - [37], referring to Martin-Smith v Woodhead [1990] WAR 62, 68 (Kennedy J) (citing Pitt v Jones (1880) 5 App Cas 651; Dale v McCullough (1988) ANZ Conv R 67, 69; Nullagine Investments Pty Ltd v The Western Australian Club Inc (Unreported, WASC, Library No 8523, 3 October 1990) (Rowland J); Holland Investments, 12.
As I understand it, counsel for Mr Timmins indicated that, by seeking such a direction for a valuation under s 126(3), Mr Timmins does not seek to compel Ms Jones to sell her share to him, but to obtain a valuation of her share so that he may purchase it at a price taking account of their respective contributions.
The court has held that the fact that a co-owner is willing to purchase the other's interest at a valuation is not a defence to a claim for an order pursuant to s 126(1).[56] In Giacci v Giacci Holdings, EM Heenan J stated that a sale in lieu of partition, even under s 126(3) of the Act at a price to be set by valuation, is possible only at the option of the claimant, and by a valuation to be directed by the court which would usually be subject to directions designed to ensure the best prospects of ascertaining the full contemporary market value.[57]
[56] See Giacci v Giacci Holdings [37] - [40], and the authorities referred to: Holland Investments, 12; McPherson v Hancock (Unreported, WASC, Library No 9173, 6 December 1991); Bailey v Pattinson (Unreported, SCWA Library No 1566/94, 23 November 1994) (Steytler J); Perman v Maloney [1939] VLR 376, 381 (O'Bryan AJ).
[57] Giacci v Giacci Holdings [44].
It was also submitted on behalf of Mr Timmins that an order for sale should not be made until the parties' respective contributions to the purchase price, mortgage repayments and in relation to improvements to the Property have been determined and their shares ascertained.
There are a number of factual disputes between the parties as to the contributions made by each of them in respect of the purchase of the Property and subsequently. Issues have also been raised about an agreement to sever the joint tenancy and subdivide the Property and the subsequent sale of a subdivided lot.
That there is a dispute as to the parties' contributions is not a matter that would prevent an order for sale being made. It is a matter that would affect the parties' respective shares in and entitlement to the proceeds of sale.
As observed by Master Sanderson in Trainor v Trainor, in circumstances, where parties had made unequal contributions to the purchase price of a property, or there may be some reason in equity why one of the co‑owners is due more of the proceeds of sale than the other, equity will protect the interests of the party by a constructive trust.[58]
[58] Trainor v Trainor [9], referring to Orrman v Orrman [No 2] [2008] WASC 17. See also Bailey v Pattinson, 7 - 8; Muschinski v Dodds (1985) 160 CLR 583, 620 (Deane J, Mason J agreeing); Willis v The State of Western Australia [No 3] [2010] WASCA 56 [51] - [66] (Buss JA).
In that case, the defendant to an application for an order for sale of properties under s 126(1) sought to argue that a comment by the plaintiff that they did not know what equity he had in the properties was an admission that he did not have an equitable half interest and therefore no right to seek a sale under s 126(1). The Master said that misunderstood the rights afforded by the section,[59] and no matter how equity treats the proceeds, the plaintiff in that case had a half interest in the properties at law. He stated that equity cannot stand in the way of a statutory right and held the plaintiff was entitled to summary judgment and an order for sale under s 126(1).[60]
[59] Trainor v Trainor [12] - [13].
[60] Trainor v Trainor [15] - [16].
In Martin-Smith v Woodhead, the court held that the fact that the defendant has expended money on the premises which may produce a higher sale price than would otherwise have been the case, is a matter which may subsequently have to be taken into account in ascertaining the parties' respective entitlements on a sale. It does not affect the substantive relief claimed.[61]
[61] Martin-Smith v Woodhead, 70 (Kennedy J), applying Squire v Rogers (1979) 39 FLR 106.
Although, the interests of the parties and the factual dispute between them as to the contributions they have made to the Property are not reasons why an order for sale should not be made, I am not satisfied that the orders sought by the plaintiff should be made on a summary basis in this case.
Issues have been raised on the evidence about an alleged agreement between the parties to sever the joint tenancy and in relation to a sub-division of the Property, amongst other matters, upon which there is limited evidence before the court. This raises uncertainty as to whether the joint tenancy has been severed and, if so, on what basis and in what shares each of the parties hold their interests as tenants in common.
These are matters, which in my view, require further examination to verify whether Ms Jones' interest in the Property is such as to entitle her to an order for sale under s 126(1) of the Act. Does she have an interest of one half or more?
In the circumstances, it is not appropriate in my view to enter summary judgment. The action should proceed to trial in the ordinary course, if the matter is not otherwise resolved.
Nothing in these reasons should be taken to anticipate the outcome of the proceedings. For present purposes, it is sufficient to conclude that this is not one of those very clear cases where the court should order summary judgment.
Conclusion and orders
For these reasons, the Application should be, and is, dismissed.
I will make orders as follows and then will hear from the parties in respect of the orders to be made in relation to costs, and any further orders, if such are not agreed:
1.The Application is dismissed.
2.Within 7 days of the date of these orders, the parties are to confer in relation to the costs of the Application and any further orders, and:
(a) if agreement is reached, file a memorandum of consent orders;
(b) if agreement is not reached, each party is to file a minute of proposed orders in relation to the costs of the Application and any further orders.
In considering the further orders and future conduct of the proceedings, in circumstances where Ms Jones has previously invited Mr Timmins to make an offer to purchase her share in the Property and Mr Timmins has undertaken to do so, referral to mediation would appear to be a logical next step.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MM
Acting Associate to Master Russell
20 MAY 2025
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