KASEWIETER v GALLIGAN - [2015] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
KASEWIETER v GALLIGAN
[2015] SASC 5
Judgment of Judge Dart a Master of the Supreme Court
27 January 2015
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTION OR SUIT
Joint owner seeks sale of real property - consideration of s 70 of the Law of Property Act 1936 - whether good reason to the contrary - application for summary judgment - consideration of Rule 232 - no reasonable basis for the defendant to oppose order for sale - summary judgment granted.
Law of Property Act 1936 s 69, s 70, s 71; Partition Act 1539 (UK) 31 Hen. 8 C 1; Supreme Court Civil Rules 2006 Rule 232, referred to.
Ceneavenue Pty Ltd and Others v Martin and Others [2008] 106 SASR 1, applied.
Callahan v O'Neil [2002] NSWSC 877; Re Cordingley (1948) 48 SR (NSW) 248; Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314; Spathis v Nanos [2008] NSWSC 418; Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685, considered.

FAMILY LAW AND CHILD WELFARE - DE FACTO AND OTHER RELATIONSHIPS UNDER STATE LEGISLATION - ADJUSTMENT OF PROPERTY INTERESTS - APPLICATIONS
Application for extension of time within which to commence proceedings - consideration of s 9(3) of the Domestic Partners Property Act 1996 - whether serious injustice - application refused.
Domestic Partners Property Act 1996 s 9, 10; Inheritance (Family Provision) Act 1972 , referred to.
Cooper v Lees [2009] SASC 386; Lang & Ors v Australian Executor Trustee Ltd & Ors [2013] SASC 171; Parij v Parij (1997) 72 SASR 153, considered.

KASEWIETER v GALLIGAN
[2015] SASC 5
JUDGE DART:

The plaintiff and defendant were, for a long time, in a domestic relationship and are the joint registered proprietors of a residential property at Birdwood (“the property”). In this action the plaintiff seeks an order under the Law of Property Act 1936 (“LPA”) for the sale of the property and proposes that the net proceeds from the sale be split equally with the defendant. The defendant opposes that course of action.
The defendant’s opposition to the sale of the property has led the plaintiff to make an application for summary judgment. There are two limbs to the application. The first is that the Court enter judgment in favour of the plaintiff in relation to his claim for the sale of the property. The second is that the defendant’s cross-action under the Domestic Partners Property Act 1996 (“DPPA”) be dismissed on the grounds that it is substantially out of time and that there is no justification for extending the time within which to commence such an action.
In my opinion, for the reasons that follow, the plaintiff is entitled to succeed with respect to both aspects of the application.
Background
The plaintiff is 74 years of age and a German citizen. He now resides at Hamburg in Germany and has…

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 KASEWIETER v GALLIGAN

Details

AGLC: KASEWIETER v GALLIGAN [2015] SASC 5
Case: [2015] SASC 5
Decision Date: 27 January 2015

CaseChat Overview and Summary

In the matter of Kasewieter v Galligan, the plaintiff, a German citizen residing in Hamburg, sought an order for the sale of a jointly owned residential property in Fairview Park. The defendant, who had been in a long-term domestic relationship with the plaintiff, opposed the sale and sought relief under the Domestic Purposes Property Act. The case involved a dispute over the commencement and end of the relationship, the construction of a new dwelling on the property, and the financial contributions made by each party. The plaintiff sought summary judgment under Rule 232 of the Supreme Court of South Australia Rules, arguing that the defendant had no reasonable basis to oppose the sale.

The central legal issue before the court was whether the plaintiff had satisfied the requirements of Rule 232 for the grant of summary judgment. This required the court to determine if it was evident or obvious that the defendant had no reasonable basis to oppose the order for sale. Under section 70 of the Law of Property Act 1936, the court is directed to order the sale of the property unless there is good reason to the contrary. The onus was on the defendant to establish such good reason, which could not merely be based on hardship or unfairness.

Debelle J, with Duggan and Anderson JJ concurring, found that the plaintiff had satisfied the requirements of Rule 232. The court noted that the statutory entitlement to partition or sale of property has always been statutory, with sale being the primary remedy. The court’s discretion under section 70 is limited, and it could not refuse the application for sale on grounds of mere hardship or unfairness. The defendant’s defence did not present any arguable basis to oppose the order for sale, and thus there was no reasonable basis for the defendant to resist the application.

The court granted summary judgment in favour of the plaintiff, directing the sale of the jointly owned property. The reasoning underscored the limited nature of the court's discretion in such matters and the statutory entitlement of the applicant to an order for sale, barring any good reason to the contrary.

Orders

Orders of the court

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Background

Background to the litigation

In my opinion, for the reasons that follow, the plaintiff is entitled to succeed with respect to both aspects of the application. Background The plaintiff is 74 years of age and a German citizen. He now resides at Hamburg in Germany and has done so since September 2007. He is currently in receipt of a retirement plan account basic pension in the amount of $2704.00 per month, which is sufficient to cover his rent and other living expenses. In several years the pension will reduce to $1824.00 per month. There is a dispute in the pleadings in respect of the date of the commencement of the relationship between the plaintiff and defendant, and also the date on which the relationship ended. The plaintiff pleads that the relationship commenced in 1990, whereas the defendant pleads that the relationship commenced in 1987. The plaintiff’s position is the relationship ended in September 2007 when he returned to Germany. He has not been back since. The defendant’s position is that she was not aware that the relationship ended until receipt of a letter in December 2008. For present purposes, little turns on which of the dates is correct. It is sufficient that it is clear that the parties had a long term domestic relationship. At the time the relationship commenced, the plaintiff owned a freehold residential property at Fairview Park and the defendant owned the property which was then a vacant block of land. The plaintiff and defendant resided at Fairview Park until about the year 2000. In that year the Fairview Park property was sold and the proceeds of sale were used to fund the construction of a new dwelling on the property. The new dwelling cost $150,000 to construct. The defendant pleads that she later provided the sum of $45,000 to the plaintiff as a contribution to the construction costs. Once the dwelling was completed, the title to the property was put into joint names. The relationship broke down in 2007 according to the plaintiff and he returned to Germany after a long time living in Australia. These proceedings were commenced on 9 January 2014. The defendant filed her defence and cross-action on 28 March 2014. The cross-action filed by the defendant seeks relief in equity and also relief pursuant to the DPPA. It is the claim in respect of the DPPA that is relevant to the plaintiff’s application for summary judgment. After the plaintiff returned to Germany in 2007 the defendant continued to reside in the property and did so until 2013. She is currently 74 years old and in receipt of the aged pension. In 2013 the position was reached whereby the defendant decided she could no longer to afford to live in the property. Since that time the property has been tenanted. The defendant is receiving the rent. The claim under the LPA The LPA provides power to the Court to order either the partition or sale of land. In respect of a residential dwelling it will rarely, if ever, be practical or possible to order partition. On such an application the issue usually becomes one of whether or not an order for sale should be made or, in the alternative, whether an order should be made directing one party to buy the share of the other.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The plaintiff must satisfy the requirements of rule 232 which provides as follows:232—Summary judgment(1)The Court may, on application by a party, give summary judgment for that party.(2)Summary judgment may only be given if the Court is satisfied that—(a)if the applicant is a plaintiff—there is no reasonable basis for defending the applicant's claim; or(b)if the applicant is a defendant—there is no reasonable basis for the claim against the applicant. In relation to the operation of Rule 232, Debelle J (with whom Duggan and Anderson JJ agreed) said in Ceneavenue Pty Ltd and Others v Martin and Others[1] that:[2]The question whether there is no reasonable basis for the claim or defence must be determined in a summary way. It is entirely inappropriate for there to be a mini trial on that question. It must, therefore, be evident or obvious that the party defending the application for summary judgment has no reasonable basis for the claim or the defence. While adversarial argument will assist in the determination of that question, the question should be capable of ready resolution without prolonged argument. [1] [2008] 106 SASR 1.[2] Ceneavenue Pty Ltd and Others v Martin and Others [2008] 106 SASR 1 at [82]. The question to decided here, then, is whether it is evident or obvious that the defendant has no reasonable basis upon which to oppose an order being made pursuant to s 70 of the LPA. The entitlement to partition or sale has always been statutory, because at common law co-owners could not compel the partition of property. The first statutes were introduced in the United Kingdom in 1539.[3] It was recognised that partition was not always convenient or available and by the 1860s the alternative remedy of sale was introduced. Sale has since become the primary remedy under the legislation, with partition relegated to limited circumstances.[4] [3] Partition Act 1539 31 Hen. 8 C 1.[4] Re Cordingley (1948) 48 SR (NSW) 248 at 250. The provisions of s 70 make it clear that the court shall direct the sale of the property unless it sees good reason to the contrary. Interstate authority in respect of equivalently worded legislation makes clear that an eligible applicant is entitled to an order for sale almost as of right.[5] The onus is on the defendant to establish good reason to the contrary such as to persuade the Court not to order a sale.[6] The court’s discretion pursuant to s 70 is properly described as limited.[7] The court cannot refuse an application merely on the grounds of hardship or unfairness.[8][5] Callahan v O’Neil [2002] NSWSC 877 at [8].[6] Woodson (Sales) Pty Ltd v Woodson (Australia ) Pty Ltd (1996) 7 BPR 14,685 at 14701.[7] Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314 at 317.[8] Spathis v Nanos [2008] NSWSC 418 at [20]. The plaintiff pleaded out his case in a fairly straightforward and simple statement of claim. The Defence sets out a number of factual matters with respect to the relationship. In paragraph 8 of the Defence the defendant simply says that an order for partition or sale of the property is opposed. The factual matters pleaded in the Defence do not amount to an arguable defence against the making of the order for sale.

Ratio Decidendi

Legal Principle Established

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