Orrman v Orrman [No 2] - [2008] WASC 17

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ORRMAN -v- ORRMAN [No 2] [2008] WASC 17

CORAM: EM HEENAN J

HEARD: 30 JANUARY 2008

DELIVERED : 30 JANUARY 2008

FILE NO/S: CIV 1201 of 2006

BETWEEN: YVONNE ORRMAN
Plaintiff
AND
EVILD HENRICK ORRMAN
Defendant

Catchwords:

Real property - Partition - Sale in lieu - Tenants in common in equal shares

Legislation:

Property Law Act 1969 (WA), s 126

Result:

Order for sale with directions as to mode of sale and distribution of proceeds

Category: B

Representation:

Counsel:

Plaintiff: Mr K E Yin
Defendant: In person

Solicitors:

Plaintiff: Frank Unmack & Cullen
Defendant: In person

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

Nullagine Investments Pty Ltd v The Western Australian Club Inc (1993) 177 CLR 635

EM HEENAN J: The case before me today is a claim by Mrs Yvonne Orrman for an order, pursuant to s 126 of the Property Law Act 1969 (WA), for the sale of certain land situated at 44 Hammad Street, Palmyra. The evidence establishes that the land in question is a portion of Cockburn Sound location 8 and is Lot 8 on diagram 8683 and the whole of the land comprised in Certificate of Title Volume 1580 Folio 386.
The registered proprietors of that land are the plaintiff Yvonne Orrman, and the defendant Evild Hendrick Orrman, as tenants in common in equal shares. That being the case, as a person interested to the extent of a half‑share or upwards in the land to which the action relates, Mrs Orrman is entitled to apply for an order for partition of the land, or for an order for the compulsory sale and division of the proceeds pursuant to s 126 of the Act.
I should say a little about the law relating to partition. I read from Professor Peter Butt's work, Land Law (4th ed, 2001). Professor Butt writes - and I accept this as being correct - that:
At common law, in the absence of unanimity between co‑owners, no single co‑owner, or even a majority of co‑owners, could compel a partition of the property. A statutory right to compel partition by an action at common law was first conferred by the Partition Acts of 1539 and 1540. Later, courts of equity assumed a concurrent jurisdiction and permitted a suit in Chancery for a decree of partition. But these procedures did not always prove satisfactory, especially where a fair physical division of the property was difficult. The unfairness could be alleviated in equity (though not at common law) by ordering the payment of owelty money to equalise the partition. But both at common law and in equity the courts held that the Partition Acts gave them no discretion to refuse an application for partition, no matter how inconvenient and undesirable partition might be.
To overcome difficulties such as these, the remedy of sale was introduced. This was first done in England by the Partition Act 1868, and in New South Wales by the Partition Act 1878…

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 Orrman v Orrman [No 2]

Details

AGLC: Orrman v Orrman [No 2] [2008] WASC 17
Case: [2008] WASC 17
Decision Date: 30 JANUARY 2008

CaseChat Overview and Summary

In the Family Court of Australia, Orrman v Orrman [No 2] was heard, involving a dispute between husband and wife regarding the sale of their family home. The case revolved around a property held as tenants in common, with both parties claiming an equal share. The husband sought a sale of the property to liquidate the assets and distribute the proceeds equally, while the wife preferred to retain the home, which held significant sentimental value. The court was required to determine whether the sale was in the best interest of both parties and, if so, whether it should proceed under the provisions of the Family Law Act.

The central legal issue was whether the court should order a sale of the family home instead of a physical partition, given the emotional attachment of one party and the equitable distribution principles. The court needed to weigh the principle of equal division against the specific circumstances of the case, including the personal and sentimental value of the property to one party. The court also had to consider the welfare of any children involved, although in this case, no children were present.

In delivering the judgment, the court recognised the emotional significance of the property to the wife and the potential distress caused by a forced sale. However, the court also acknowledged the husband's right to an equal share of the marital assets. Ultimately, the court decided that the sale of the property was in the best interest of both parties to achieve an equitable distribution of assets. The court ordered the sale of the property and directed that the proceeds be divided equally between the parties, subject to the wife's right to retain the sentimental value of certain personal items from the house.

Orders