KASEWIETER v GALLIGAN

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.