Partition Act of 1911 (2 Geo v No. 18) (Qld)

LOANS.-PARTITION. 2 GEO. V. No. 1fj, 1911. Partition Act.· 5199 indemnify the Treasury against any double payment if the missing Hill should thereafter be presented for payment. 10. All Treasury Bills issued under this Act, after Cancelling of being paid off and discharged, shall be cancelled, and ~ i~ 1harged .shall, together with all checks, indents, and counterfoils s. belonging to them, be burned or otherwise ·destroyed in the presence of the Auditor-General and the Under Secretary <>f the Treasury, who shall certify the fact of such destruc- tion to the Treasurer. NAVIGATION. See SHIPPING. PARTITION. An Act relating to Partition. 2 Geo. V. No.1S. [ASSENTED TO 20TH ])ECEMBER, 1911.J THE PARTITION B E it enacted by the King's Most Excellent' Majesty, AOT OF 1911. by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows :- . 1. This Act may be cited as "The Partition .Act of Short title. 1911." 2. In this Act the term "the Court" ineans the Interpret&· Supreme Court of Queensland. tion. 3. This Act shall apply to actions pending at the .Applica.tion t!o time of the passing of this Act as well as to actions ~ ~ 'Vic. commenced after the passing thereof. c.17, s. 2. 4. (1.) In an action for partition in which, if this Act Court ma.y had not been passed, a J ' U dgment ~ ~ or partI'tl,On m1,ght have oinrsdteeradsaolef been obtained- division. " ( 1 . . ) If 1 't appears to the Court that, by reason 0 f -- . 3 c. 14 & 0, 3 s 2 . 3 V . ie. (a). The nature of the property to which the action relates; or (b) The number of the parties interested or pre- sumptively interested therein; or (a) The absence or disability of some of those parties; or

l>200 PAltTITION. Partition Act. 2 GEO. V. No. 18, (d) Any other circumstance; 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 Oourt may, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them,' order a sale of the property accordingly; Sale on application of certain proportion of interest. 31 & 32 Vie. c. 40, s. 4. (ii.) If the party 01' parties interested individually 01' collectively, to the extent of one moiety or- upwards in such property, request the Oourt 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 inte- rested, the Oourt shall, unless it sees good reason to the contrary, order a sale of the property accordingly ; Purchase of share of po.rty desiring ~ale. 31 & 32 Vic. c. 40, s. 5. (iii.) If any party interested in such property requests the Oourt 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 Oourt may, unless the other parties interested in the property or some of them undertake to pur- chase the share of the party requesting a sale,. order a sale of the property accordingly. If such undertaking is given, the Oourt may order a valuation of the share of the party requesting a sale in such a manner as. the Oourt thinks fit. (2.) The Court, when making an order under this. , Act, shall give all necessary consequential directions. Authoritv 5. On a sale under this Act the Oourt may allow f~ ~ e~ : : : ! ~ any of the parties interested in the property to bid at the to bid. sale, on such terms as to non-payment of deposit, or as to ~ ~ 4~ , ~ ~ :ie. 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. Application 6. Section thirty-two of " The Trustees and Executors ~ ;: ' s~ ! ~ and Act of 1897"* shall extend 'and apply to cases where in Executors actions for partition the Oourt orders a sale instead of a 3 A 1 ct & o 3 f 2 1 V 89 ie 7 . ." d 1 ' V . 1S . 10n O f . the proper t y. e. 40, s. 7. '" 61 Vie. No. 10, supra, page 3507.

PARTITION. 52OJ. U)1l. Partition Act. 7. (1.) All mo.ney to. be received o.n any sale underA.pplicationoI this Act may, if the Co.urt thinks fit, be paid to. any ~ : ~ ~ eeds of trustees ·o.f who.m it appro.ves, o.r o.therwise the same shall be paid into. Co.urt. (2.) In every case such mo.ney 0.1' any part o.r share thereo.f shall be applied as the Co.urt fro.m time to. time directs to. so.me o.ne o.r more of the following purposes- namely, (a) The discharge, purchase, or redemptio.n of en- cumbrances affecting the land in respect of which such money was paid o.r affecting any o.ther land subject to the same uses or trusts; (b) The payment of the costs, charges, and expenses of or incidental to the exercise of any of the powers or the execution of any of the provisions of this Act; (c) The purchase of other land to be settled in the same manner as the land in respect of which the money was paid; (d) The payment to any person being or becoming absolutely entitled or empowered to. give an absolute discharge. 8. The application of the mo.ney in manner aforesaid.Applications may (if the Court so. directs) be made by the trustees (if any) to the Court. without any application to the Court, or otherwise shall be made upon an order of the Court upon the application of the person who. would be entitled to the possession o.r to. the receipt of the rents and. pro.fits of the land if the money had been invested in the purchase of land. 9. Until the mo.ney can be applied as afo.resaid, the Interim same shall be dealt with as pro.vided for by the Regulations ~vestmentB' and Rules o.f Court under" The Supreme Court Funds c. .Act of 1895,"* relating to the deposit and investment of moneys in Court. The interest and proceeds shall be paid to the perso.n who. would have been entitled to the rents and profits of the land if the mo.ney had been invested in the purchase o.f·land. 10. Any person who if this Act ~ ad not been passed Part!e.B to might have maintained an action fo.r partition may main- partItlOn tain such action against anyone o.r more o.f the parties ~ ~ &~~ Vie. interested witho.ut serving the other o.r others, (if any) of c. 40, B. 9. those parties. * '59. vie. No. 7, supra, page 3460.·

5202 PARTITION. Partition Act. :2 GEO. Y. No. 18, It shall not be competent for any defendant in the action to object for want of parties. At the hearing of the action the Court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters as it thinks 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 (unless such service is dispensed with as hereinafter mentioned) be served with notice of the judgment or order" on the hearing, and aiter 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. All such persons may have liberty to attend the pro- ceedings. Any such person may within the time limited by Rules of Court apply to the Court to discharge, vary, or add to the judgment or order. D~ 8pen8i~ g n. (1.) Where it appears tothe Court that notice of the :~t~~ ~ e~ flCeOfjudgment or order on the hearing of the action cannot be judgment. served on all the persons on whom that notice is by the ! ~rt~~ : ' ic. last pl'eceding section required to Le served, or cannot be so served without expense disproportionate to the value of the property to which the action relates, the Court may, 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, and instead thereof may direct advertisements to be published at such times and in such manner as the Court thinks 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 ~he Judge in Chambers within a time to be thereby limited. (2.) After the expiration of the time so limited, all persons who have not 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 date of the order dispensing with service they had been served with notice of the judgment or order, service whereof is dispensed with; and thereupon the powers of the Court

PARTITION: 5208 1911. Partition Act. under " The Tr'ustpes and Executor's A.ct of 1897"* shall extend to their interests in 'the property to which the action relates as if they had been parties to the action. The Oourt may thereupon, if it thinks fit, order a ,sale of the property and give all necessary consequential directions. 12. (1.) Where an order is made under this Act Proceeding~ 'dr dispensing with service of notice on any person or class of ere sed r ' VlCe persons ' a d n ' property I . S soldby or d er of' ht Oe our t , t h e wi s t p h e . nse . followinO o ' provisions shall have e£fect- c 3 . 9 1 & 7, 4 s 0 . 4 V . IC. . (2.) The pruceeds of sale shall be paid into Oourt to abide the furtlier ordt'r of the Oourt. (S.) 'The Oourt shall, by order, fix a time at the expiration of which the proceeds will be distributed, and. may from time to time, by further order, extend that time. (4.) The Court shall direct such notices to be given by advertisements or otherwise as it thinks best adapted for notifying to any persons service on whom is dispensed with, and who have not 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 partici- pate in the proceeds must be made. (5.) If at the expiration of the time so fixed or extended the interests of all the persons interested have been ascertained, the Oourt shall distribute the proceeds in ac~ ordance with the rights of those persop.s. (6.) 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 Oourt 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 heen est;tblished, whether all those persons are or are not hefore the Oourt, and with such reservation, (if any) as to the Court seems proper in favour of any othe¥ persons (whether ascertairredor n'ot) who appear to have any"pl'imafacie rights which ought to be so provided for, although such rights have not heen fully established, but to the ,exclusion of all other persons.. • 61 Vie. No. 10, supra, page 3507.

PARTITION. Partition Act. 2 GEO. V. No. 18, 'fhereupon all such other persons shall by virtue of thi!'\ Act be excluded from participation in those proceeds on the distribution thereof. But notwithstanding t.he distribution any excluded person may recover from any participating person any portion received by him of the share of the excluded person. Case of 13. Where in an action for partition two or more ssualcecsesinsivseame sales are maue, if any person who bas by virtue of this action. Act been excluded from participation in the proceeds of c 3 . 9 1 & 7, 4 s 0 . 5 V . ic. 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-par.ticipation of the excluded person in the proceeds of the previous sale, amI. 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. Request by 14. In an action for partition a request for sale may dpiesrasboinlituyn. der be made or an undertaking to purchase given, on the part 39& 40 Vie. of an infant, person of unsound mind, or perEon under any c. 17, 8. 6. other disability, by the guardian, committee (if so authorised by order of the Court), or other person authorised to act on behalf of the person under such disability. But the Court shall not be bound to comply with any such request or undertaking on the part of any such person unless it appears that the sale or purchase will be for his benefit. Sales, how effected. 15. When the Court orders a sale under this Act, it may order such sale to be effected~ (a) By the Court; or (b) Out of Court subject to such restriction as the Court thinks fit; or ((J) Altogether out of Court. SaI6o£ p~ ~ ion 16. In an action for partition where by this Act the ~f~ 6! ~ : ~ ~ r~ Court is empowered to order a sale of the property to which the action relates, the ,Court may, if it thinks fit, order a sale of a portion of the property and a partition of the remainder. ~ ~s. is32 Vie. 17. IIlanaction for partition the Court may make c. 40, 8. 10. such order as it thinks just respecting the costs thereof.

PARTITION. 5205 1911. Partition Act. 18. For the purposes of this Act an action for partition Procedure: 'Shall include an action for sale and distribution of the 3 c. 9 1 & 7, 4 s 0 .7 V . w. proceeds. In an action fOl' partition it shall-be sufficient to claim ca sale and distribution. of the proceeds, and it shall not be necessary to claim a partition. 19. The Judges of the Supreme Court 01' a majority Rules of -of them, of whom the Chief Justice shall be one, may Court. from time to time make rules- (a) For carrying the purposes of this Act into effect, and for regulating the time's, and forms, and mode of procedure, and generally the practice of the Court in respect of the matters to which this Act relates; and (b) For regulating the fees and allowances to all officers of the Court and barristers and solicitors thereof, in respect to such matters; and ( c) For altering, as far as may be found expedient;. the course of proceeding hereinbefore prescribed in respect to the matters to which this Act relates, or any of them. All such rules shall be laid before both Houses of Parliament within forty days after the making thereof if Parliament is then sitting, or, if Parliament is not then· 'Sitting, within forty days after the commencement of the next session of Parliament. If either House of. Parliament, by resolution passed within one month after such rules have been laid before such House, resolves that the whole or any part of such rules ought not to continue in force, in such case the whole or such part thereof as is so included in such resolution shall from and after such resolution cease to be binding, but without prejudice to the validity of any- thing previously done thereunder. -