Okely v Duffy
[2024] WASC 316
•2 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: OKELY & ORS v DUFFY [2024] WASC 316
CORAM: MASTER RUSSELL
HEARD: 22 AUGUST 2024 and 2 SEPTEMBER 2024
DELIVERED : 2 SEPTEMBER 2024
FILE NO/S: CIV 2322 of 2022
BETWEEN: KATHLEEN ELIZABETH OKELY, JENALLE LOUISA DUFFY and TRACEY ANNE DUFFY
Plaintiffs
AND
LORRAINE DELORES DUFFY, ANGELA MICHELLE DUFFY, TERESA LOUISE DUFFY, CHRISTINA MATILDA DUFFY and MELINDA ELLEN DUFFY as executors of the will of the late BERNARD JAMES DUFFY
First Defendants
DARREN WILLIAM DUFFY
Second Defendant
Catchwords:
Practice and procedure - Motion for judgment in default of appearance - Application for order for sale pursuant to s 126(1) of the Property Law Act 1969 (WA) - Orders for sale of property - Turns on own facts
Legislation:
Property Law Act 1969 (WA) s 126(1)
Rules of the Supreme Court 1971 (WA) O 9 r 1(4), O 13, O 13 r 1(1), O 13 r 1(3)(a), O 13 r 9, O 13 r 9(1)(a), O 13 r 9(2)(b), O 53 r 3(1), O 53 r 4(1)
Result:
Judgment entered for plaintiffs against second defendant in default of appearance
Orders for sale of property
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr G Paull |
| First Defendants | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiffs | : | Cullen Macleod |
| First Defendants | : | No appearance |
| Second Defendant | : | No appearance |
Cases referred to in decision(s):
Bombara v Bombara [2010] WASC 314
Bray v Bray [1926] HCA 40; (1926) 38 CLR 542
David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87
Martin-Smith v Woodhead [1990] WAR 62
Trainor v Trainor [2021] WASC 40
MASTER RUSSELL:
Introduction
The plaintiffs, Kathleen Elizabeth Okely, Jenalle Louisa Duffy and Tracey Anne Duffy, commenced this proceeding by way of writ of summons indorsed with a statement of claim on 14 December 2022, 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).
By ex parte motion filed on 15 July 2024, the plaintiffs apply for judgment in default of appearance against the second defendant, Darren William Duffy, pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
The land the subject of the plaintiffs' application forms part of the land situated at and known as 95 Woodvale Drive, Woodvale, Western Australia, being the land more particularly described as:
1.542/2558 undivided shares of Lot 36 on Diagram 32799 and being the whole of the land contained in Certificate of Title Volume 1486 Folio 128 (Share Title 1); and
2.2016/2558 undivided shares of Lot 36 on Diagram 32799 and being the whole of the land contained in Certificate of Title Volume 134 Folio 149A (Share Title 2),
(together the Land).
A copy of the certificates of title are attached to the affidavit of Gregory Keith Paull sworn on 15 July 2024 as attachment 'GKP-1'.
The first named first plaintiff, Kathleen Elizabeth Okely, is the sole proprietor of the land described in Share Title 1.
The registered proprietors, as tenants in common, of the land described in Share Title 2 are:
(a)the first named first plaintiff, Kathleen Elizabeth Okely, in 786/4032 share;
(b)the second named first plaintiff, Jenalle Louisa Duffy, in 1082/4032 share;
(c)the third named first plaintiff, Tracey Anne Duffy, in 541/4032 share;
(d)the first named first defendant, Lorraine Delores Duffy, the second named first defendant, Angela Michelle Duffy, the third named first defendant, Teresa Louise Duffy, the fourth named first defendant, Christina Matilda Duffy and the fifth named first defendant, Melinda Ellen Duffy, in 1082/4032 share; and
(e)the second defendant, Darren William Duffy, in 541/4032 share.
As the parties mostly share the same surname, with no disrespect to any of them, when referring to any of them individually, I refer to them by their first name.
The Land comprises two parts, which have been described as Portion A and Portion B.
Portion A comprises an area of 20,800 square metres and Portion B comprises an area of 23,892 square metres.
Portion A of the Land has been sold to the Western Australian Planning Commission (WAPC). Settlement of that sale was completed on 27 June 2024.
The plaintiffs seek an order for sale in relation to Portion B of the Land. All of the owners, except the second defendant, Darren, agree to the sale of Portion B of the Land and have each signed a contract for sale of Portion B (Sale Contract) with Riverswan Holdings Pty Ltd (Riverswan).
Darren has not entered an appearance and all attempts made for him to sign the Sale Contract have been unsuccessful.
The plaintiffs applied for judgment in default of appearance against Darren, pursuant to O 13 r 9 RSC and sought orders for sale of Portion B of the Land pursuant to s 126(1) of the Act.
I heard the plaintiffs' application on 22 August 2024. For the reasons that follow, I was satisfied that the procedural requirements had been met, and that it was appropriate to enter judgment in default of appearance against Darren. I made orders entering judgment against Darren, and I adjourned the application for the plaintiffs to file further evidence and submissions in support of the order for sale, and orders to give effect to a sale, of Portion B of the Land.
Documents relied upon in support of the application
In support of their application for judgment against Darren in default of appearance, the plaintiffs read and relied upon:
(a)affidavits of Gregory Keith Paull sworn on 23 January 2023 and 3 February 2023 verifying service of the writ of summons indorsed with statement of claim on Darren; and
(b)further affidavits of Gregory Keith Paull sworn on 15 July 2024, 12 August 2024 and 21 August 2024.
They also relied upon an outline of submissions filed on 12 August 2024.
Procedural requirements for default judgment
The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were considered by Lundberg J in David Alan Collison as administrator of the estate of Diane Carol Collison v Collison.[1]
[1] David Alan Collison as administrator of the estate of Diane Carol Collison v Collison [2024] WASC 87 [12] - [17], [19] - [21].
Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, damages, detention of goods or possession of land.
The procedural requirements that must be satisfied for default judgment under O13 r 9 RSC are:
1.The proceeding must have been commenced by writ of summons.[2]
2.Service of the writ on the defendant must be verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC.[3]
3.No appearance has been filed by the defendant within the time prescribed for appearing.[4]
4.If the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant.[5]
5.The plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant, as required by O 13 r 9(2)(b) RSC.
[2] O 13 r 1(1) RSC.
[3] O 13 r 1(3)(a) RSC.
[4] O 13 r 9(1)(a) RSC.
[5] O 13 r 9(2)(a) RSC.
Once the procedural requirements are satisfied, the court may consider the exercise of its discretion to grant default judgment for the relief sought.
Compliance with procedural requirements under O 13 r 9 RSC
I was satisfied, at the hearing on 22 August 2024, that the procedural requirements under O 13 r 9 RSC had been complied with.
On 24 January 2023, Master Sanderson made orders pursuant to O 72 r 4 RSC dispensing with the requirement for personal service on Darren, and directing that service of the writ of summons indorsed with statement of claim on 22 December 2022, by email to Darren at the email address stated, was deemed good and sufficient service upon him.
Mr Paull verifies substituted service of:
(a)the writ of summons on Darren by email on 22 December 2022, in his affidavit sworn on 23 January 2023; and
(b)a copy of the orders of Master Sanderson of 24 January 2023 on that date, in his affidavit sworn on 3 February 2023.
An amended statement of claim was filed on 29 June 2023. There was no change to the facts on which the claim is based or to the relief sought. The amendments were limited to correcting errors to the paragraph numbering. As such, though there is no evidence that the amended statement of claim was served on Darren, I was satisfied he was served with the statement of claim indorsed on the writ of summons, which is in the same terms. The only difference is to the paragraph numbers.
At the hearing on 22 August 2024, counsel for the plaintiffs tendered a certificate signed by the proper officer as required under O 13 r 9(2)(b) RSC, certifying that no appearance has been entered by Darren.[6]
[6] Exhibit 1.
The relief sought
The following facts relevant to the relief sought are deposed to in the affidavits read in support of the application.
The Land is owned in approximately the following percentages:
(a)the first named first plaintiff, Kathleen - 36.55%;
(b)the second named first plaintiff, Jenalle - 21.15%;
(c)the third named first plaintiff, Tracey - 10.57%;
(d)the first defendants, Lorraine, Angela, Teresa, Christina and Melinda - 21.15%; and
(e)the second defendant, Darren - 10.57%.
Together the plaintiffs own approximately 68.27% of Portion B of the Land. It is not encumbered by any mortgage.
In mid-December 2023, the plaintiffs and the first defendants (who together own approximately 89.43% of the Land) agreed to sell their respective shares in Portion B of the Land to Riverswan, on terms to be agreed.
In late June 2024, the plaintiffs, the first defendants and Riverswan reached an agreement as to the terms of a contract for sale of land or strata title by offer and acceptance, the Sale Contract. As I have referred to, the Sale Contract has been signed by Riverswan, each of the plaintiffs and by each of the first defendants. A copy of the Sale Contract and the counterparts signed by those parties is attached to Mr Paull's affidavit sworn and filed on 21 August 2024 as attachment 'GKP-4'.
On 16 October 2023, a valuers' conferral memorandum was filed pursuant to orders made by Acting Master McDonald on 31 July 2023. The expert valuers engaged by the plaintiffs and the first defendants conferred and concluded in the memorandum that the sale price provided in the Sale Contract for Portion B of the Land was a fair reflection of market value.
All of the owners who have signed the Sale Contract wish to proceed with the sale of Portion B to Riverswan with the proceeds of sale being apportioned to the parties in accordance with their respective shares in Portion B of the Land.
Despite attempts, the plaintiffs have been unable to obtain Darren's agreement to the sale of Portion B of the Land. The plaintiffs seek an order for sale of the Land pursuant to s 126(1) of the Act, and ancillary orders to give effect to the sale.
Applicable principles - s 126(1) of the Act
Section 126(1) of the Act provides:
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.
Section 126(1) provides an alternative to partition of land. As the words of s 126(1) provide, where a party or parties have a half interest (or more), individually or collectively, in the land to which the action relates, they may seek an order of the court directing a sale of the land.[7]
[7] See Bombara v Bombara [2010] WASC 314 [79] (Allanson J).
As observed by Master Sanderson in Trainor v Trainor,[8] s 126(1) 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 Land. There is no other alternative available. Unless the court sees good reason to the contrary, it shall direct a sale.[9]
[8] Trainor v Trainor [2021] WASC 40 [4] ‑ [6].
[9] Bombara v Bombara [79], referring to Bray v Bray [1926] HCA 40; (1926) 38 CLR 542, 545 (Knox CJ); Martin-Smith v Woodhead [1990] WAR 62, 69 ‑ 70 (Kennedy J).
Order 53 r 3(1) RSC provides that where an order is made directing that land be sold, the court may appoint a party or some other person to have conduct of the sale and permit that party to sell the land in such manner as they think fit. Order 53 r 4(1) RSC empowers the court to give directions, as it thinks fit, for the purpose of effecting the sale.
Order 53 r 4(1) RSC provides:
4. Directions
(1) The Court may either on the making of the order for sale, or on a subsequent application give such further directions as it thinks fit for the purpose of effecting the sale, including directions —
(a) appointing the party or person who is to have the conduct of the sale;
(b) fixing the manner of sale, that is to say, whether the sale is to be by contract conditional on the approval of the Court, by private treaty, by public auction, by tender, or by some other manner;
(c) fixing a reserve or minimum price;
(d) requiring payment of the purchase money into court or to trustees or other persons;
(e) for settling the particulars and conditions of sale;
(f) for obtaining evidence of value;
(g) fixing the remuneration to be allowed to any auctioneer, real estate agent, or other person.
The language of O 53 r 4(1) is such as to give the court an unfettered discretion as to the directions it may give and the terms of the orders it may make upon ordering a sale of land, including pursuant to s 126(1) of the Act.
Determination as to orders for sale pursuant to s 126(1) of the Act
The copies of the certificates of title for the Land attached to Mr Paull's affidavit sworn on 15 July 2024 confirm that Kathleen is the sole proprietor of Share Title 1, and that each of the parties are the registered proprietors, as tenants in common, of Share Title 2, in their respective shares, as stated and as I referred to earlier.
I was satisfied on the evidence before me at the hearing on 22 August 2024 and accepted the plaintiffs' submissions to the effect that the plaintiffs, collectively, have a greater than a half share in the Land, and have standing to bring this action under s 126(1) of the Act.
All of the owners except Darren wish to sell Portion B of the Land and are agreed upon a sale price. Together those owners own approximately an 89.43% share in the Land.
I must make an order for sale of Portion B of the Land unless there is a good reason to order partition.
There was no evidence before me to suggest there is any good reason why Portion B of the Land should be partitioned, and I should not direct that it be sold.
As submitted on behalf of the plaintiffs, s 126 of the Act, by its very nature, acts as a means to compel a party or parties resisting a sale of land to sell that land despite their resistance to such sale. Darren has been served with the writ indorsed with the statement of claim seeking orders for sale of the Land. He has not entered an appearance or sought to be heard. The plaintiffs' attempts to engage with him have gone unanswered.
I was, and am, satisfied that it is appropriate to make an order pursuant to s 126(1) of the Act directing that Portion B of the Land be sold.
I raised concerns with the plaintiffs' counsel at the hearing on 22 August 2024 as to the description of the 'Land', and whether I could make orders in the terms then sought, which effectively provided that Portion B of the Land be sold to Riverswan pursuant to the terms of the Sale Contract, with the proceeds of sale to be apportioned to the parties in proportion to their respective shares in the Land.
Counsel for the plaintiffs accepted that the description and definition of 'Land' in the proposed orders did not clearly identify that it is only Portion B of the Land that is to be the subject of any order for sale. It was submitted that Portion B could be identified as excluding that part of the Land sold to WAPC. However, there was no evidence before the court of the agreement between the parties and WAPC in relation to the sale and purchase of Portion A of the Land.
In accordance with the orders made on 22 August 2024, in relation to the orders for sale, the plaintiffs filed a supplementary outline of submissions and further affidavits sworn by Gregory Keith Paull on 22 and 23 August 2024. They also filed a revised minute of proposed orders on 28 August 2024.
In the further affidavit of Greg Keith Paull sworn and filed on 22 August 2024, Mr Paull deposes to the agreement between the parties to this proceeding, including the second defendant, Darren, and WAPC dated 14 June 2024 (WAPC Agreement) for the sale of Portion A of the Land, and to settlement of that sale on 27 June 2024. A copy of the WAPC Agreement is attached to Mr Paull's affidavit sworn on 22 August 2024 marked 'GKP-5'.
The orders sought in the plaintiffs' revised minute of proposed orders included a definition of the Land that identifies the Land the subject of the order excludes the portion (Portion A) sold to WAPC under the WAPC Agreement. They also addressed the concerns I raised about making orders that effectively directed a sale to Riverswan on the terms of the Sale Contract.
Conclusion and orders
For the reasons outlined, I was satisfied on 22 August 2024 that it was appropriate to enter default judgment in favour of the plaintiffs against Darren. I was also satisfied, on 2 September 2024, that it was appropriate to make an order directing the sale of Portion B of the Land pursuant to s 126(1) of the Act, to be defined in the orders as set out in the plaintiffs' revised minute of proposed orders filed on 28 August 2024.
On 2 September 2024, I made orders in the terms proposed by the plaintiffs with some modification and additions, as set out in the schedule to these reasons, which includes an order that Darren pay the plaintiffs' costs of the action as against him, including of the application for judgment in default of appearance, and reserved costs, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AP
Associate to Master Russell
2 SEPTEMBER 2024
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