Partition Act 1869 (TAS)

Partition Act 1869

An Act to amend the law relating to partition

[Royal Assent 22 October 1869]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1Short titleThis Act may be cited as the Partition Act 1869 . 2Interpretation [Section 2 Amended by 25 Geo. V No. 78 ]In this Act the Court means the Supreme Court. 3In partition action Court may order sale instead of division [Section 3 Amended by 25 Geo. V No. 78 ]In an action for partition, where, if this Act had not been passed, an order for partition might have been made, then, if it appears to the Court that by reason of the nature of the property to which the action relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstances, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the Court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 4Sale on application of parties interested to extent of moiety or upwards [Section 4 Amended by 25 Geo. V No. 78 ]In an action for partition, where, if this Act had not been passed, an order for partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the action relates, request the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions. 5As to purchase of share of party requesting sale [Section 5 Amended by 25 Geo. V No. 78 ] (1)  In an action for partition, where, if this Act had not been passed, an order for partition might have been made, then, if any party interested in the property to which the action relates requests the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions. (2)  Where such undertaking is given, the Court may order a valuation of the share of the party requesting a sale in such manner as the Court thinks fit, and may give all necessary or proper consequential directions. 6Parties interested may bidOn any sale under this Act the Court may, if it thinks fit, allow any of the parties interested in the property to bid at the sale on such terms as to non-payment of deposit or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters, as to the Court seems reasonable. 7Application of Trustee Act 1898 [Section 7 Amended by 25 Geo. V No. 78 ] Section thirty-nine of the Trustee Act 1898 shall extend and apply to cases where, in actions for partition, the Court directs a sale instead of a division of the property. 8Application of Settled Land Act 1884 [Section 8 Amended by 25 Geo.V No. 78 ]Money to be received on any sale effected under the authority of this Act shall be subject to the provisions of the Settled Land Act 1884 relating to moneys arising from the sale of land under that Act. 9Parties to partition actions [Section 9 Amended by 25 Geo. V No. 78 ] (1)  Any person who, if this Act had not been passed, might have maintained an action for partition, may maintain such action against any one or more of the parties interested without serving the other or others, if any, of those parties; and it shall not be competent to any defendant in the action to object for want of parties. (2)  At the hearing of the cause the Court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters as it thinks necessary or proper with a view to an order for partition or sale being made on further consideration; but all persons who, if this Act had not been passed, would have been necessary parties to the action shall be served with notice of the order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the action, and shall be deemed parties to the action. (3)  All such persons may have liberty to attend the proceedings, and any such person may, within a time limited by general orders, apply to the Court to add to the order. (4)  If the Court is satisfied that any person who would have been a necessary party to the action cannot be found, the Court may proceed by partition or sale in the absence of such party. 10Costs in partition action [Section 10 Amended by 25 Geo. V No. 78 ]In an action for partition the Court may make such order as it thinks just respecting costs up to the time of the hearing. 11Power of Court to dispense with service of notice of order in special cases [Section 11 Substituted by 25 Geo. V No. 78 ] (1)  Where in an action for partition it appears to the Court that notice of the order cannot be served on all the persons on whom that notice is, by this Act, required to be served, or cannot be so served without expense disproportionate to the value of the property to which the action relates, the Court may, if it thinks fit, on the request of any of the parties interested in the property, and notwithstanding the dissent or disability of any others of them, by order, dispense with that service on any person or class of persons specified in the order. (2)  In lieu of such service the Court may direct advertisements to be published at such times and in such manner as the Court shall think fit, calling upon all persons claiming to be interested in such property who have not been so served to come in and establish their respective claims in respect thereof before a judge in chambers within a time to be thereby limited. (3)  After the expiration of the time so limited all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the Court (including persons under any disability), shall be bound by the proceedings in the action as if on the day of the date of the order dispensing with service they had been served with notice of the order, service whereof is dispensed with. (4)  Thereupon the powers of the Court under the Trustee Act 1898 shall extend to their interests in the property to which the action relates as if they had been parties to the action; and the Court may thereupon, if it shall think fit, direct a sale of the property and give all necessary or proper consequential directions. 12Proceedings where service of notice is dispensed with [Section 12 Inserted by 25 Geo. V No. 78 ]Where an order is made under this Act dispensing with service of notice on any person or class of persons, and property is sold by order of the Court – (a) the proceeds of sale shall be paid into Court to abide the further order of the Court; (b) the Court shall, by order, fix a time, at the expiration of which the proceeds will be distributed, and may, by further order, extend that time; (c) the Court shall direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons on whom service is dispensed with, who may not have previously come in and established their claims, the fact of the sale, the time of the intended distribution, and the time within which a claim to participate in the proceeds must be made; (d) if at the expiration of the time so fixed or extended the interests of all the persons interested have been ascertained, the Court shall distribute the proceeds in accordance with the rights of those persons; (e) if at the expiration of the time so fixed or extended the interests of all the persons interested have not been ascertained, and it appears to the Court that they cannot be ascertained, or cannot be ascertained without expense disproportionate to the value of the property or of the unascertained interests, the Court shall distribute the proceeds in such manner as appears to the Court to be most in accordance with the rights of the persons whose claims to participate in the proceeds have been established, whether all those persons are or are not before the Court, and with such reservations, if any, as to the Court may seem fit in favour of any other persons (whether ascertained or not) who may appear from the evidence before the Court to have any prima facie rights which ought to be so provided for, although such rights may not have been fully established, but to the exclusion of all other persons, and thereupon all such other persons shall by virtue of this Act be excluded from participation in those proceeds on the distribution thereof, but notwithstanding the distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person. 13Provision for case of successive sales in same action and claimant at first excluded, but later admitted [Section 13 Inserted by 25 Geo. V No. 78 ]Where in an action for partition two or more sales are made, if any person who has by virtue of this Act been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent, if any, to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time. 14Request by infant or person under disability [Section 14 Inserted by 25 Geo. V No. 78 ] (1)  [Section 14 Subsection (1) amended by No. 63 of 1963, s. 2 and Sched. 2 ]In an action for partition a request for sale may be made or an undertaking to purchase given on the part of an infant by his next friend or guardian. (2)  The Court shall not be bound to comply with any such request or undertaking on the part of an infant unless it appear that the sale or purchase will be for his benefit. 15Mortgagee may bring partition action: "Mortgagee" in this section, meaning of [Section 15 Inserted by 25 Geo. V No. 78 ] (1)  The mortgagee of the undivided share of any person who would have been entitled to maintain an action for partition under this Act shall be entitled to maintain such action in like manner as the mortgagor might have done. (2)  The term mortgagee in this section shall include any persons in whom the legal right to receive the money secured by any mortgage may be vested at the time of the commencement of any such action; and the provisions of this section shall be applicable to all mortgages whenever executed. 16Action for partition to include action for sale and distribution [Section 16 Inserted by 25 Geo. V No. 78 ]An action for partition shall include an action for sale and distribution of the proceeds; and in an action for partition it shall be sufficient to claim a sale and distribution of the proceeds, and it shall not be necessary to claim a partition.