Nullagine Investments Pty Ltd v The Western Australian Club Incorporated

Nullagine Investments Pty Ltd sought special leave to appeal to the High Court of Australia from a decision of the Full Court of the Supreme Court of Western Australia. The dispute concerned the right of a co-owner of real estate to seek an order for partition or sale in lieu of partition. The applicant argued that the case raised a question of law of public importance and general application, as it dealt with the ability of co-owners to contractually restrict their inherent right to partition.

The central legal issue before the High Court was whether a co-owner of real estate could enter into a contract that permanently restricted their statutory or common law right to seek an order for partition or sale in lieu of partition. This question arose in the context of an agreement between co-owners, and the applicant sought to argue that such a contractual restriction was invalid as it purported to extinguish a fundamental incident of co-ownership.

The applicant's counsel indicated that for the purposes of the special leave application, they would accept the construction of the relevant agreement as determined by the courts below. This concession was made to focus the High Court's attention on the substantive legal question of whether a co-owner's right to partition could be permanently contracted away, a right that had historically been considered an absolute entitlement of co-ownership. The applicant contended that this principle had broad application across Australia and therefore warranted the granting of special leave.