Palamore Pty Ltd v Clode

[1999] WASC 83

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PALAMORE PTY LTD -v- CLODE [1999] WASC 83

CORAM:   MASTER BREDMEYER

HEARD:   11 JUNE 1999

DELIVERED          :   25 JUNE 1999

FILE NO/S:   CIV 1282 of 1998

BETWEEN:   PALAMORE PTY LTD (ACN 009 122 338)

Plaintiff

AND

JANICE BARBARA CLODE
Defendant

Catchwords:

Summary judgment - Application for sale in lieu of partition

Legislation:

Property Law Act 1969 (WA), s 126(1)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr M S Macdonald

Defendant:     Mr I A Morison

Solicitors:

Plaintiff:     Macdonald Rudder

Defendant:     Healy Pynt

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

Nullagine Investments Pty Ltd v WA Club Inc (1993) 177 CLR 633

Case(s) also cited:

Nil

1. MASTER BREDMEYER: This is an application by the plaintiff for summary judgment. The plaintiff has made it very clear that the only kind of summary judgment it seeks is an order for sale of the property. Section 126(1) of the Property Law Act 1969 (WA) lends itself to summary judgment because if a plaintiff has a half share or more in the property he is normally entitled to an order. Section 126(1) provides that where a party with a half share or more requests the court to direct a sale, the court shall, unless it sees good reason to the contrary, direct a sale accordingly. So in this case the plaintiff has the requisite half share and has requested a sale so I should grant the order unless I see good reason to the contrary. If I do find good reason to the contrary I should order partition; see Nullagine Investments Pty Ltd v WA Club Inc (1993) 177 CLR 633 at 645 and 666. In addition, because the plaintiff is requesting an order for sale in a summary judgment application I must consider in the terms of O 14 r3(1) whether "there is an issue or question in dispute which ought to be tried, or that there ought for some other reason to be a trial of the action".

2. Partition would suit the defendant better.  It would be fairer to her.  She purchased her house and half share in the land as her retirement house.  She is not wealthy.  She is afraid that if a sale of the property is ordered, some richer person would outbid her and she would lose her carefully chosen retirement home which has been improved by her.  The plaintiff initially was not adverse to partition.  It signed the Deed of Agreement for Separate Use of 4 September 1995 which included cl 5 whereby the parties agreed to use their best endeavours to apply for sub‑division. 

3. The plaintiff and the defendant jointly applied to the State Planning Commission for sub-division.  That application was rejected on 26 May 1999 as sub‑division was contrary to the local town planning scheme. 

4. I am going to refuse this application and let the matter go on to trial.  I am not going to order sale because I see good reason to the contrary, namely that partition is the greatly preferred result in this case and may still be possible.  Having refused sale, I would normally consider ordering partition but as this is a summary judgment application and the plaintiff has not asked for partition, I am not going to grant it.  It is in the best interests of the defendant to attempt partition (sub‑division) instead of sale and, as I have stated, partition, if it can be achieved, is not prejudicial to the plaintiff.  I am going to let this case go on to trial in the hope that in the months between now and trial the parties may be able to achieve sub‑division.  There is a hope of it.  One possibility is to appeal against the order of the State Planning Commission.  Another possibility, and it may be a stronger one, is to seek an amendment to the town planning scheme for this property.  I understand that is called "spot rezoning".  That is a possibility.  Previously an objection to that was lack of water in the area to support two properties instead of one.  That opposition has now gone.  The Waters and Rivers Commission in Karratha advised the plaintiff's solicitors in April 1999 that it has no opposition to such a rezoning.

5. What I have said is enough to dispose of this application and, as there is no appeal from a summary judgment application which is dismissed, there is no need for me to consider the other defences raised by the defendant in her amended defence of 8 December 1998 and argued before me.

6. This application will be dismissed and, subject to any argument to the contrary, the appropriate costs order will be costs in the cause.