Lillimagi v Allen

[2011] WASC 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LILLIMAGI -v- ALLEN [2011] WASC 46

CORAM:   MASTER SANDERSON

HEARD:   3 FEBRUARY 2011

DELIVERED          :   3 FEBRUARY 2011

PUBLISHED           :  24 FEBRUARY 2011

FILE NO/S:   CIV 2438 of 2010

BETWEEN:   ROY LILLIMAGI

Plaintiff

AND

BRETT ROBERT ALLEN
KERRY ANNE ALLEN
Defendants

Catchwords:

Property law - Sale of jointly owned property - Turns on own facts

Legislation:

Property Law Act 1969 (WA), s 126(1)
Rules of the Supreme Court 1971 (WA), O 13 r 8

Result:

Sale of property ordered

Category:    B

Representation:

Counsel:

Plaintiff:     Ms A Gangemi

Defendants:     In person

Solicitors:

Plaintiff:     Durand Gangemi

Defendants:     In person

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

Martin‑Smith v Woodhead [1990] WAR 62

1. MASTER SANDERSON: By motion dated 23 December 2010, the plaintiff applied for judgment pursuant to O 13 r 8 of the Rules of the Supreme Court 1971 (WA). The defendants did not enter an appearance to the writ, but they did appear when the matter was first returned in chambers on 27 January 2011. The matter was adjourned to allow the defendants to consider their position.

2. The matter came on again on 3 February 2011.  Still no appearance had been filed.  Counsel for the plaintiff moved for judgment.  I gave the defendants the opportunity to be heard.  In my view, there was no defence to the claim and I indicated I would enter judgment.  The defendants had some difficulty understanding why judgment should be entered and I indicated I would publish reasons.  These are those reasons.

3. Between May 2006 and October 2006, the plaintiff and the defendants purchased two properties in Port Kennedy.  The title searches to these properties show that the plaintiff had a half interest in the properties and the defendants have a similar interest.  A reading of the statement of claim suggests the properties were purchased as a business venture which was unsuccessful.  But that is not to the point.  What is relevant for the purposes of this application is the plaintiff and the defendants hold equal interests in each of the properties. 

4. The plaintiff seeks an order under s 126(1) of the Property Law Act 1969 (WA). That section is in the following terms:

   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.

5. A party who has a half interest in property is entitled to seek from the court an order for sale of that property.  The court has no alternative but to order the sale unless the property can be partitioned - that is to say, divided between the owners.  That is not the case here.  So the plaintiff is entitled to a sale of each property as of right.  Kennedy J in Martin‑Smith v Woodhead [1990] WAR 62 analysed s 126 of the Property Law Act in some detail.  There is no doubt the plaintiff is entitled to an order for sale. 

6. However, I am not satisfied the form of orders sought by the plaintiff is appropriate.  Generally speaking, the order ought follow common form 38 adapted as necessary.  The plaintiff's solicitors should bring in a minute which reflects that common form. 

7. The costs of the application including the reserved costs should be borne by the defendants.