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Segal v Barel

Segal v Barel

Case [2013] NSWCA 92 29 April 2013

Statutory Construction

Property Law

Equity & Trusts

Civil Procedure

Type to search within this case.

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Segal v Barel [2013] NSWCA 92
Hearing dates: 9 April 2013
Decision date: 29 April 2013
Before: McColl JA (at [1]); Barrett JA (at [2]); Preston CJ of LEC (at [140])
Decision:
The parties are to bring in agreed short minutes of orders giving effect to paragraphs [130] to [134], [136] and [137] of the judgment; and to make submissions in writing on [135].
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: REAL PROPERTY - partition of land - partition or sale in partition actions - statutory trust for sale or partition - where primary judge granted one co-owner's application for appointment of trustees for partition in preference to the other co-owner's application for appointment of trustees for sale - finding that partition would be "more beneficial for" the co-owners than sale - nature of the "more beneficial" assessment - whether non-financial matters may be taken into account - nature of "partition - whether partition achieved if each co-owner receives one lot in a strata subdivision - nature of equitable co-ownership of strata scheme common property by lot owners discussed - such equitable co-ownership incompatible with partition - REAL PROPERTY - partition of land - ancillary matters - financial adjustments - "equality money" - taking of account to ascertain co-owners' contributions to expenditure enhancing the value of the land
Legislation Cited: Conveyancing Act 1919, Division 6 of Part 4, ss 66F, 66G, 66H
Partition Act 1868 (Eng), ss 3 and 4
Real Property Act 1900
Statutes of Partition (31 Hen 8 c 1 and 32 Hen 8 c 32)
Strata Schemes (Freehold Development) Act 1973, ss 18(1), 20(a) and (b), 24(2)
Strata Schemes Management Act 1996, s 11(1), Schedule 2, clauses 12(2), 15(4),18
Cases Cited: Barel v Segal [2011] NSWSC 1181
Barel v Segal (No 2) [2012] NSWSC 1054
Barel v Segal (No 3) [2012] NSWSC 1319
Brickwood v Young [1905] HCA 12; (1905) 2 CLR 387
Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 245
Carre v Owners Corporation - Strata Plan 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302
Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Comptroller of Stamps v Christian [1991] 2 VR 129
Cryer v Ossher [1997] NSWSC 613; (1997) 8 BPR 15,831
Drinkwater v Ratcliffe (1875) LR 20 Eq 528
Dunston v Dunston (unreported, NSWSC, Cohen M, 14 September 1983)
Ellison v Cleghorn [2013] EWHC 5 (Ch)
Foregard v Shanahan (1995) 35 NSWLR 206
Gilbert v Smith (1879) LR 11 Ch D 78
Hayward v Skinner (1981) 1 NSWLR 590

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 Segal v Barel

Details

AGLC: Segal v Barel [2013] NSWCA 92
Case: [2013] NSWCA 92
Decision Date: 29 April 2013

CaseChat Overview and Summary

In *Segal v Barel*, the New South Wales Court of Appeal considered a dispute between co-owners of land concerning its future disposition. One co-owner sought the appointment of trustees for partition, while the other sought the appointment of trustees for sale. The primary judge had favoured partition, finding it would be "more beneficial" for the co-owners than sale.

The Court of Appeal was required to determine the nature of the "more beneficial" assessment in the context of partition applications, specifically whether non-financial matters could be considered. It also had to consider the nature of partition in the context of a strata subdivision and whether the equitable co-ownership of common property by lot owners in a strata scheme was compatible with the concept of partition. Furthermore, the Court addressed ancillary matters, including financial adjustments and the taking of accounts to ascertain co-owners' contributions to expenditure that enhanced the land's value.

The Court reasoned that the "more beneficial" assessment under the relevant legislation (likely the *Conveyancing Act 1919* (NSW)) was not confined to purely financial considerations and could encompass non-financial benefits. However, it held that the equitable co-ownership of common property by lot owners in a strata scheme was fundamentally incompatible with partition. This incompatibility meant that partition, in the traditional sense, could not be achieved if each co-owner received one lot in a strata subdivision, as this would not resolve the co-ownership of the common property.

The Court ordered the parties to bring in agreed short minutes of orders giving effect to specific paragraphs of the judgment, and to make written submissions on another paragraph.

Orders

Orders of the court

The parties are to bring in agreed short minutes of orders giving effect to paragraphs [130] to [134], [136] and [137] of the judgment; and to make submissions in writing on [135].

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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Citations

AGLC Citation

Segal v Barel [2013] NSWCA 92

Most Recent Citation

Foote v Foote [2014] NFSC 2

Cases citing this decision · 9 of 9 shown

Thistleton v Thistleton
[2022] NSWSC 101 Para 26

…(see s 66G(4)). The relevant enquiry here is whether partition would be more beneficial in a financial sense (see Segal v Barel (2013) 84 NSWLR 193; [2013] NSWCA 92 at [67]-[68] per Barrett JA). The defendant suggested that both she and the plaintiff would be financially better off if there were a partition. It w…
Warren v Lawton [No 3]
[2016] WASC 285

…cDonald [1976] 1 NSWLR 88 Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596 Segal v Barel [2013] NSWCA 92; (2013) 84 NSWLR 193 Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 W&K Holdings (NSW) Pty Ltd v Mayo [2013] NSWSC 1063 Western Metals Resources…
Fleming v Fleming
[2016] QSC 215 Para 11

…is only after the s 66G(4) condition is satisfied that any notion of equally available alternatives comes into play.”[7] [6] (2013) 84 NSWLR 193; [2013] NSWCA 92. [7] Ibid, at [25]-]29].…
Commonwealth Bank of Australia v Segal
[2016] NSWSC 1016 Para 7

…allowed the appeal in part and ordered that trustees be appointed to sell the Property but confirmed the account taken by Pembroke J: Segal v Barel [2013] NSWCA 92.…
Segal v Osborne
[2016] NSWSC 941 Para 1

…This case concerns a property in Macleay Street, North Bondi. It is a sequel to the proceedings dealt with by the Court of Appeal in Segal v Barel [2013] NSWCA 92 and Segal v Barel (No 2) [2013] NSWCA 148. The Court of Appeal set aside certain orders for the partition of the property and instead made orders for th…
Harris v Harris
[2014] NSWSC 1766 Para 1

…equal shares is entitled to an order for the appointment of trustees for sale "as of right", citing Re Fettell (1952) 52 SR (NSW) 227; Segal v Barel [2013] NSWCA 92; 84 NSWLR 193 per Barrett JA at [59]; Pascoe v Dyason [2011] NSWSC 1217 per Black J at [5]; Callaghan v O'Neill [2002] NSWSC 877 per Young CJ in Eq a…
Foote v Foote
[2014] NFSC 2 Para 10

…ct 1919 (NSW). That subsection contains a “more beneficial” criterion which was discussed by the New South Wales Court of Appeal in Segal v Barel [2013] NSWCA 92 at [49] and following.…
Thomson v Sweeney
[2013] NSWSC 1383 Para 1

…On 29 April 2013 the Court of Appeal gave judgment in Segal v Barel [2013] NSWCA 92. That judgment clarified the law in relation to claims for partition under s 66G and the requirements of subs (4) of s 66G whereby the Court may order partition instead of sale if satisfied that partition would be more beneficial f…
Segal v Barel (No 2)
[2013] NSWCA 148 Para 1

…THE COURT: The parties have agreed the form of the orders appropriate to give effect to the Court's decision of 29 April 2013: Segal v Barel [2013] NSWCA 92. They have also made submissions on the question of the costs at first instance.…

View all 9 citing cases →

Cases cited in this decision · 29 of 29 shown

Barel v Segal (No 3)
[2012] NSWSC 1319 Para 1

…the preference for partition over sale and dealt with a number of financial matters outstanding between the parties. The third ( Barel v Segal (No 3) [2012] NSWSC 1319 dated 2 November 2012) dealt with the form of the final orders and the matter of costs.…
Barel v Segal (No 2)
[2012] NSWSC 1054 Para 1

…ation of further submissions. It also foreshadowed referral of certain matters to a referee for inquiry and report. The second ( Barel v Segal (No 2) [2012] NSWSC 1054 dated 21 September 2012) considered the report of a referee, confirmed the preference for partition over sale and dealt with a number of financial ma…
Barel v Segal (No 1)
[2011] NSWSC 1181 Para 1

…Three judgments were given. The first ( Barel v Segal [2011] NSWSC 1181 dated 19 October 2011) canvassed the respective merits of partition and sale and expressed a preference for partition, subject to consideration of further submissions. It also foreshadowed referral of certain matters to a referee for inquiry and…
The Owners SP 35042 v Seiwa Australia Pty Ltd
[2007] NSWCA 272 Para 1

…ls and ceilings. This aspect of the strata titles legislation was explained by this Court in The Owners - Strata Plan 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272; (2007) 13 BPR 24,789.…
Moratic Pty Ltd v Gordon
[2007] NSWSC 5 Para 1

…his aspect of the strata titles legislation was explained by this Court in The Owners - Strata Plan 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272; (2007) 13 BPR 24,789.…
Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd
[2005] NSWSC 784 Para 1

…r the adoption, rejection and variation of referees' reports as stated by McDougall J in Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 and noted that the court's discretion, in that respect, "is wide". The second judgment continued (at [48] - [49]):…
Ridis v Strata Plan 10308
[2005] NSWCA 246 Para 1

…No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2004) 62 NSWLR 169 at [45] and by McColl JA in Ridis v The Proprietors Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 at [119]:…
Owners - Strata Plan No 43551 v Walter Construction Group Ltd
[2004] NSWCA 429 Para 1

…t [28]-[29] quoted with approval by Spigelman CJ (Ipp and McColl JJA concurring) in The Owners - Strata Plan No 43551 v Walter Construction Group Ltd [2004] NSWCA 429; (2004) 62 NSWLR 169 at [45] and by McColl JA in Ridis v The Proprietors Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 449 at [119]:…
Carre v Owners Corporation - SP 53020
[2003] NSWSC 397 Para 1

…ect of these provisions, as they affect the common property, was described in the following passage in Carre v Owners Corporation - Strata Plan 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302 at [28]-[29] quoted with approval by Spigelman CJ (Ipp and McColl JJA concurring) in The Owners - Strata Plan No 43551 v Walter…
Nevin v The Beneficiaries of the Peppermint Beach Estate Trust
[2002] WASC 300 Para 1

…yed in a similar statutory context: Jabs Construction Ltd v Callahan [1992] 1 WWR 748; Nevin v The Beneficiaries of The Peppermint Beach Estate Trust [2002] WASC 300; Wong Chun Kei Johnny v Poon Vai Ching [2005] HKCFI 19.…
Ryan v Dries
[2002] NSWCA 3 Para 1

…had been doubtful until Leigh v Dickeson. The quoted passages in the judgment of Millett J were among several approved by Sheller JA in Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497 at [5].…
Barlow v Hollis
[2000] VSCA 26 Para 1

…In Comptroller of Stamps v Christian [1991] 2 VR 129, both Young CJ (at 133) and O'Bryan J (at 140) quoted with approval the following description of "partition" in vol 21 of the first edition of Halsbury's Laws of England (which has been repeated in later editions):…
Calverley v Green
[1984] HCA 81 Para 1

…ares) are presumed to indicate the proportionate equitable interests of persons who, at law, are equal co-owners: see, for example, Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 245. The presumption is, however, rebuttable; and the fact that the parties have, in this case, proceeded in the way described…
Squire v Rogers
[1979] FCA 85

…t the Minister's consent. The point was not considered when the Full Federal Court dismissed the appeal from Gallop J, Squire v Rogers [1979] FCA 48; (1979) 27 ALR 330. In Panizutti , the point was not actually argued, though Needham AJA said at page 542 that he considered that the benefit referred to was a financia…
Mitchelson v Mitchelson
[1979] FCA 48

…eing able to get the Minister's consent. The point was not considered when the Full Federal Court dismissed the appeal from Gallop J, Squire v Rogers [1979] FCA 48; (1979) 27 ALR 330. In Panizutti , the point was not actually argued, though Needham AJA said at page 542 that he considered that the benefit referre…
Brickwood v Young
[1905] HCA 12 Para 1

…o Leigh v Dickeson [1881] 15 QBD 60. The first of the quoted passages from his judgment echoes what Cotton LJ said in that case. In Brickwood v Young [1905] HCA 12; (1905) 2 CLR 387 at 394-395, Griffith CJ acknowledged the principle, noting that it was of comparatively recent development and had been doubtful un…
Nullagine Investments Pty Ltd v Western Australian Club Incorporated
[1993] HCA 45 Para 1

…The effect of partition, as described by Brennan J in Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 650, is "the termination of the existing co-ownership and the passing of full title to an owner who, without requiring the concurrence of a co-owner, can occupy a…
The same principle was applied in Minister for Mineral Resources v Brantag Pty Ltd
[1997] NSWCA 206 Para 1

…o into questions of sentiment" and "must look merely to the monetary results". The primary judge also noted that, in Cryer v Ossher [1997] NSWSC 613; (1997) 8 BPR 15,831, Young J said of Jessel MR's statement (at BPR 15,832):…
The primary judge also noted that, in Cryer v Ossher
[1997] NSWSC 613 Para 1

…he court "cannot go into questions of sentiment" and "must look merely to the monetary results". The primary judge also noted that, in Cryer v Ossher [1997] NSWSC 613; (1997) 8 BPR 15,831, Young J said of Jessel MR's statement (at BPR 15,832):…
Turner v Morgan
32 ER 307 Para 1

…In some cases of enforced partition, inconvenience arising from physical features of the land cannot be avoided. In Turner v Morgan (1803) 8 Ves 143; 32 ER 307, for example, Lord Eldon confessed himself unable to make a better partition for parties holding a house in the proportions two-thirds to one-third t…
Wood v Drew
55 ER 505 Para 1

…Monetary adjustment by way of "equality money" - sometimes called "equality of partition" or "owelty of partition" ( Wood v Drew (1864) 33 Beav 610; 55 ER 505) - will be required in such a case.…
[1993] 1 WLR 1046
[1993] 1 WLR 1046 Para 1

…pproach to equality money reflects thinking that informs a broader aspect of equity's jurisdiction in proceedings for partition or sale. In Re Pavlou [1993] 1 WLR 1046 at 1048, Millett J said:…
[1881] 15 QBD 60
[1881] 15 QBD 60 Para 1

…His Lordship referred, in connection with this principle, to Leigh v Dickeson [1881] 15 QBD 60. The first of the quoted passages from his judgment echoes what Cotton LJ said in that case. In Brickwood v Young [1905] HCA 12; (1905) 2 CLR 387 at 394-395, Griffith CJ acknowledged the principle, noting that it was of c…
Kirby P and White J to Pemberton v Barnes
6 Ch App 685 Para 1

…ability to have regard to non-financial considerations was supported by the express reference by Kirby P and White J to Pemberton v Barnes (1871) LR 6 Ch App 685. That, however, was a case arising under s 4 of the Partition Act 1868 , not s 3. Section 4 dealt with the situation where co-owners interested to th…
[1921] NZLR 384
[1921] NZLR 384 Para 1

…936) 36 SR (NSW) 310 at 314 (Long Innes CJ in Eq); McMahon v Public Curator (Qld) [1952] St R Qd 197 at 201 (Macrossan CJ); and McCormick v McCormick [1921] NZLR 384 at 387-388 (Salmond J)) and quoted the following passage from the judgment of Meagher JA in Foregard v Shanahan (1995) 35 NSWLR 206 (at 223):…
Pascoe v Swan
54 ER 201

…tigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee (see, eg Pascoe v Swan (1859) 27 Beav 508; 54 ER 201); this is an example of equity following the law: and secondly, if the owner in occupation claims an allowance in respect of improvements effected by…
Teasdale v Sanderson
55 ER 476

…is accountable for an occupation fee - this is an example of he who comes to equity having to do equity: see Teasdale v Sanderson (1864) 33 Beav 534; 55 ER 476.…
Luke v Luke
(1936) 36 SR 310 Para 1

…ond judgment to a number of decided cases (including Ryan v Dries (above) at [6] (Sheller JA), [12] (Giles JA), and [27], [61] and [75] (Hodgson JA); Luke v Luke (1936) 36 SR (NSW) 310 at 314 (Long Innes CJ in Eq); McMahon v Public Curator (Qld) [1952] St R Qd 197 at 201 (Macrossan CJ); and McCormick v McCormick [192…
Pemberton v Barnes
(1871) 6 Ch App 685

…[2002] WASC 300 Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 Pannizutti v Trask (1987) 10 NSWLR 531 Pemberton v Barnes (1871) LR 6 Ch App 685 Re Darby [1999] 2 Qd R 350 Re Pavlou [1993] 1 WLR 1046 Ridis v The Proprietors Strata Plan 10308 [2005] NSWCA 246; (2005) 63 NSWLR 44…

Legislation cited in this decision · 6

Strata Schemes (Freehold Development) Act 1973 (NSW)
18(1), 20(a), 24(2) 4 mentions (from Para 1)
Strata Schemes Management Act 1996 (NSW)
11(1) 2 mentions (from Para 1)
Conveyancing Act 1919 (ACT)
1 mention (from Para 1)
Real Property Act 1900 (NSW)
1 mention (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 1)
Trustee Act 1925 (ACT)
1 mention

Medium Neutral Citation:	Segal v Barel [2013] NSWCA 92
Hearing dates:	9 April 2013
Decision date:	29 April 2013
Before:	McColl JA (at [1]); Barrett JA (at [2]); Preston CJ of LEC (at [140])
Decision:	The parties are to bring in agreed short minutes of orders giving effect to paragraphs [130] to [134], [136] and [137] of the judgment; and to make submissions in writing on [135]. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	REAL PROPERTY - partition of land - partition or sale in partition actions - statutory trust for sale or partition - where primary judge granted one co-owner's application for appointment of trustees for partition in preference to the other co-owner's application for appointment of trustees for sale - finding that partition would be "more beneficial for" the co-owners than sale - nature of the "more beneficial" assessment - whether non-financial matters may be taken into account - nature of "partition - whether partition achieved if each co-owner receives one lot in a strata subdivision - nature of equitable co-ownership of strata scheme common property by lot owners discussed - such equitable co-ownership incompatible with partition - REAL PROPERTY - partition of land - ancillary matters - financial adjustments - "equality money" - taking of account to ascertain co-owners' contributions to expenditure enhancing the value of the land
Legislation Cited:	Conveyancing Act 1919, Division 6 of Part 4, ss 66F, 66G, 66H Partition Act 1868 (Eng), ss 3 and 4 Real Property Act 1900 Statutes of Partition (31 Hen 8 c 1 and 32 Hen 8 c 32) Strata Schemes (Freehold Development) Act 1973, ss 18(1), 20(a) and (b), 24(2) Strata Schemes Management Act 1996, s 11(1), Schedule 2, clauses 12(2), 15(4),18
Cases Cited:	Barel v Segal [2011] NSWSC 1181 Barel v Segal (No 2) [2012] NSWSC 1054 Barel v Segal (No 3) [2012] NSWSC 1319 Brickwood v Young [1905] HCA 12; (1905) 2 CLR 387 Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 245 Carre v Owners Corporation - Strata Plan 53020 [2003] NSWSC 397; (2003) 58 NSWLR 302 Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 Comptroller of Stamps v Christian [1991] 2 VR 129 Cryer v Ossher [1997] NSWSC 613; (1997) 8 BPR 15,831 Drinkwater v Ratcliffe (1875) LR 20 Eq 528 Dunston v Dunston (unreported, NSWSC, Cohen M, 14 September 1983) Ellison v Cleghorn [2013] EWHC 5 (Ch) Foregard v Shanahan (1995) 35 NSWLR 206 Gilbert v Smith (1879) LR 11 Ch D 78 Hayward v Skinner (1981) 1 NSWLR 590