Squire v Rogers

SQUIRE v. ROGERS (1979) 39 FLR 106
Partition - Practice

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Forster(1), Brennan(2) and Deane(3) JJ.

CATCHWORDS

Partition - Property - Co-owners - Leads in perpetuity of land - Appellant co-owner in sole occupation carrying on business for reward - Sale or partition - Allowance for capital expenditure on improvements - Account of rents and profits - Whether respondent co-owner entitled to benefit of income from improvements made by appellant without contributing thereto - Whether appellant entitled to allowance for work and labour - Effect of Limitation of Suits and Actions Act, 1866-1867 (S.A.).

Partition - Property - Sale or partition - Jurisdiction of court to order same - Partition Act, 1881 (S.A.) - Effect of Darwin Town Area Leases Ordinance 1947 - Temporal reference point for construction of Partition Act, 1881 (S.A.) - Distinction between making decree of partition and carrying into effect.

Practice - Procedure - Application for adjournment - Circumstances in which appeal court will interfere with exercise of discretion of judge of first instance as to mode and time of trying an action.

Practice - Procedure - Application to amend notice of appeal - Reluctance of appeal court to permit point to be raised on appeal which was not taken in court below does not extend to question of lack of jurisdiction.

HEADNOTE

The appellant and respondent were co-tenants of land within the Darwin town area under a perpetual lease issued pursuant to the provisions of the Darwin Town Area Leases Ordinance 1947 commencing from 5th September, 1961. Section 29 of the Ordinance requires, inter alia, that each parcel of leased land should be held and occupied by or under the lessee as one undivided parcel. Section 29A provides for an application for approval to subdivide land that is subject to a lease. A covenant in the lease required, inter alia, that within one year of its commencement there be buildings on the land of a total value of not less than $15,000. In June 1963 the respondent left Australia and voluntarily left the land in the occupation of the appellant with the expectation that the appellant would spend money on improvements thus preserving their joint leasehold interest by complying with the said covenant. The appellant erected flats and other improvements and carried on a business of providing accommodation in flats, rooms and caravans and letting caravan sites. The respondent made no contribution to improvements effected to the subject land after the grant of the perpetual lease. The respondent returned to Australia in 1976 and on 14th December, 1976, instituted proceedings in the Supreme Court of the Northern Territory of Australia for an order for the sale of the estate of the appellant and the respondent and for an order that an account be taken of the rents and profits received by the appellant in respect of the subject land since 5th September, 1961. Section 4 of the Partition Act, 1881 (S.A.), confers jurisdiction upon the Supreme Court of the Northern Territory of Australia to make an order for sale in lieu of partition "in an action for partition, where, if this Act had not been passed, a decree for partition might have been made". The Supreme Court made the orders sought and the appellant appealed.

Held: (1) The Limitation of Suits and Actions Act, 1866-1867 (S.A.), requires that an order for an account should be limited to a period commencing six years before the issue of the writ.

(2) An order for the taking of accounts should define the receipts and outgoings on which the accounts are to be taken.

Sanguinetti v. Stuckey's Banking Company (No.2), (1896) 1 Ch 502, referred to.

(3) The receipts for which the appellant would be liable to account are limited to those receipts which can properly be regarded as rents and revenue of the common property itself as distinct from profits which the appellant may have made by his use and occupation of the common property.

(4) Upon the taking of the account the appellant should be allowed: (a) an amount to recompense for his work and labour in deriving any receipts included in the amount; (b) an amount in respect of any receipts of rent and profits which had been applied to the making of improvements in accordance with a general arrangement, if any, between the appellant and the respondent.

(5) Upon sale the appellant was to be allowed full reimbursement of all expenditure upon capital improvements whose use had contributed to the receipts the subject of the account, to the extent that a credit for such expenditure had not already been allowed upon the taking of an account.

Boulter v. Boulter (1898), 19 LR (NSW) (Eq.) 135, applied.

(6) Section 29 of the Darwin Town Area Leases Ordinance 1947 does not deprive the court of jurisdiction to make a decree for partition since the making of such a decree would not, in itself, involve a division of the holding or occupation of the land in respect of which the decree is made.

Patel v. Premabhai, (1954) AC 35, applied.

(7) Per Forster and Deane JJ., Brennan J. not deciding - Assuming that the words in the Partition Act, 1881 (S.A.), "where, if this Act had not been passed, a decree for partition might have been made" add to the prior reference to "an action for partition" at least the requirement that the circumstances of the particular case are such that the court would have had jurisdiction to make an order for partition, then whether a decree for partition "might . . . have been made" falls to be answered in the context of the law of the colony of South Australia at the time when the Partition Act, 1881 (S.A.), commenced to operate.

Principles applicable upon applications for amendments and adjournments discussed and applied.

HEARING

Sydney, 1979, June 4-6; August 29. #DATE 29:8:1979

APPEAL

Appeal from orders of the Supreme Court of the Northern Territory (Gallop J.) for the sale of the subject land and for an account of rents and profits received by the defendant appellant in respect of it and consequential orders.

K. McCarthy Q.C. and K.H. Clothier, for the appellant.

M.D.A. Maurice, for the respondent.

Cur. adv. vult. P.A. JEWELL

JUDGE1

August 29.

The following judgments were delivered.

FORSTER J. I have had the advantage of reading the judgment of Deane J. I agree with it and the orders he proposes and I have nothing to add. (at p108)

JUDGE2

BRENNAN J. I have had the advantage of reading the reasons for judgment of Deane J. I agree in the judgment which his Honour proposes, and in his reasons for proposing it, subject to a qualification presently to be mentioned. The appellant raised two defences to the claim for the order for sale of the jointly-owned property - the first relating to the respondent's delay in bringing proceedings in the Supreme Court of the Northern Territory, and the second relating to the requirement in s. 29 of the Darwin Town Area Leases Ordinance 1947. That section requires that each parcel of leased land should be held and occupied by or under the lessee as one undivided parcel. Each defence was said to take the case out of s. 4 of the Partition Act, 1881 (S.A.), the section which conferred jurisdiction upon the Supreme Court to make the order for sale in lieu of partition against which this appeal was brought. Section 4 is expressed to apply "in an action for partition, where, if this Act had not been passed, a decree for partition might have been made . . .". It was submitted that, by reason of the defences, the case was not one where a decree of partition might have been made if the Act had not been passed. (at p108)

In rejecting these defences, his Honour has decided that the legal context which existed when the Act was passed in 1881 (or which must be notionally considered to have existed at that time) is the relevant context in which to determine whether an order for partition might have been made had the Act not been passed. I should wish to reserve my opinion on this question. My concurrence with his Honour's judgment is not thereby affected. Whether one chooses 1881 or some later date, the defence relating to delay fails for the reasons which his Honour gives. Equally, s. 29 of the Ordinance in whatever temporal context it is considered, does not affect the jurisdiction of the court to make a decree of partition. The defences fail, at whatever time they are to be considered. (at p109)

JUDGE3

DEANE J. Robert Weir Squire ("the defendant") appeals against an order made by the Supreme Court of the Northern Territory for the sale of the estate of himself and Miss Frances Rogers ("the plaintiff") as tenants under a lease in perpetuity of approximately one and a half acres of land situate at Nightcliff within the Darwin town area. The defendant also appeals against an order that an account be taken of the rents and profits received by him in respect of the subject land since 5th September, 1961, and against a number of consequential orders. (at p109)

The relevant orders were made by the Supreme Court in proceedings instituted by the plaintiff on 14th December, 1976. These proceedings were listed for hearing on 5th October, 1978. When the matter was called on that day, counsel for the defendant informed the court that he had been briefed to appear for the defendant some three minutes previously. The explanation proferred to the court was that the defendant had been advised on 28th September, 1978, by his previous legal representatives that they were unprepared to continue to act for him because of his failure to pay their professional fees. Counsel for the defendant sought an adjournment "for so long as possible". This application for an adjournment was opposed by counsel for the plaintiff who tendered a letter dated 27th September, 1978, from the defendant which concluded with the statement that he "no longer wished" his previous solicitors to act for him. No suggestion was made that the professional fees which the defendant declined to pay were excessive or that the defendant was unable to pay them. Counsel for the plaintiff informed the court that his client, whom he described as "too old and frail" for regular travelling, had travelled from the United States where she lived, to Australia for the case and would need to return to the United States if the case did not proceed and subsequently return to Australia for any adjourned hearing. The learned trial judge suggested to counsel for the defendant that he apply for a short adjournment to enable him to take instructions and indicated that he would then favourably consider an application for an adjournment to the following day. His Honour added that, so far as he was concerned, the case was to proceed "today or tomorrow". This last-mentioned statement was made in a context where his Honour had twice indicated that his "inclination" to refuse to grant a more lengthy adjournment was the result of his view "at the moment". (at p109)
Later in the morning, after a second short adjournment to enable negotiations between the parties to continue, counsel for the defendant applied for, and obtained, an adjournment of the proceedings to the following day which was a Friday. On that day, evidence was heard. At mid-afternoon when the evidence had seemingly been completed, counsel for the defendant indicated that the defendant was "asking that the land be divided, not sold" and was granted, at his request, an adjournment of the proceedings until the following Monday to enable the more precise formulation of a proposal for partition. When the proceedings were resumed, counsel for the defendant sought and obtained leave to re-open the defendant's case. Leave was granted and a plan of proposed subdivision of the subject land was received in evidence. Arising from that evidence, further evidence was led by the plaintiff. Counsel then addressed and the learned judge reserved his decision. (at p110)
The facts as disclosed by the evidence before the Supreme Court were largely undisputed and can be briefly stated. The perpetual lease to the parties issued under the provisions of the Darwin Town Area Leases Ordinance 1947 on 30th October, 1962, with effect from 5th September, 1961. It required that within one year of its commencement, or such further time as the administrator of the Territory might allow, there be buildings on the land of a total value of not less than $15,000. The annual rental reserved by the lease was 40 pounds until 30th June, 1970, and, thereafter, 5 pounds per cent of the unimproved value of the land as determined from time to time under the Ordinance. Before the issue of the perpetual lease, the land had been held by the defendant under a special lease. The defendant had permitted the plaintiff to live on the land for some years and the plaintiff had been responsible for effecting some improvements on the land including the erection of a hut. It was the defendant's decision that the perpetual lease should issue in the joint name of the plaintiff and himself. In June 1963, some eight months after the issue of the perpetual lease, the plaintiff, who was and is an American national, left Australia to return to the United States. It would seem that, apart from a card which she sent on the Christmas after her departure, she had no communication with the defendant until, some thirteen years later, she returned to Australia to claim the benefit of her interest in the subject land and, ultimately, to institute the present proceedings. (at p110)
The improvements on the land at the time the perpetual lease issued were, apparently, not accepted by the administration as appropriate to be taken into account for the fulfilment of the covenant relating to required building improvements. The defendant caused two buildings which he described as "twin blocks of flats" to be erected on the land at, he estimated, a combined cost of between $40,000 and $50,000. He caused other improvements to be effected on the land and there carried on a business of letting flats and rooms and conducting a caravan site. These buildings and improvements were largely destroyed by Cyclone Tracy in December 1974. After the cyclone, the defendant expended further moneys on improvements. A valuation which was received in evidence indicated that the present improvements included a swimming pool and a total of eleven sub-standard buildings, comprising nine flats, fifteen single rooms, a recreation shed and an ablutions block. The gross annual income derived from the business of providing accommodation in flats, rooms and caravans and letting caravan sites was estimated, ignoring income from caravans and caravan sites, to be in excess of $19,000. The defendant estimated that his total expenditure on improvements, before and after the cyclone of 1974, was at least $100,000. His evidence to that effect was not challenged in cross-examination. It was not suggested that the plaintiff had made any contribution at all to the improvements effected to the subject land after the grant of the perpetual lease. All outgoings, including rent, had been paid by the defendant. (at p111)
Little assistance as to the real issues between the parties is to be derived from the pleadings. The statement of claim sought an order for sale or, alternatively, an order for partition, an order for an account and ancillary orders. It contained allegations of the basic facts as to the grant of the lease, the registration of the plaintiff and the defendant as proprietors of the leasehold interest, the improvements on the land and the carrying on by the defendant of the business on the land. All of these allegations were admitted by the defence. Allegations in the statement of claim that the plaintiff and the defendant held their leasehold interest as joint tenants, that a sale would be more beneficial than partition and that the plaintiff was "interested in the leasehold estate" were denied by the defence which raised a number of legal defences. These legal defences were summarized by the learned trial judge, in his reasons for judgment, as being: "1. At the date of the purported grant to the plaintiff of a leasehold estate in the subject land she was not a British subject and was therefore not qualified to hold the grant of leasehold land as prescribed by s. 6 of the Darwin Town Area Leases Ordinance in force at the time of the granting of the lease. 2. The plaintiff is not a joint tenant of the said estate but a tenant in common. 3. The plaintiff is not entitled to the remedies claimed or any of them. 4. The plaintiff is statute barred by reason of the Limitation of Actions Act, 1866-1867 (S.A.). 5. The plaintiff has been guilty of delay and should be estopped by her conduct from gaining the relief sought." The learned judge stated that, on the hearing of the action, "the defendant did not persist in any of these defences, but in the end result contended that the court should order a division of the property between the plaintiff and the defendant and put forward a plan of subdivision which would give effect to this proposal". An examination of the transcript confirms the accuracy of his Honour's observation in relation to the claim for an order for sale. The only defence to that claim pressed by the defendant was that, in the circumstances, an order for partition and not an order for sale should be made. The position is not, however, quite so clear in respect of the plaintiff's claim for an account of rents and profits. (at p112)
It is difficult to discern from the transcript of both evidence and argument which, if any, of the defendant's submissions were intended to relate either to the question whether an account of profits should be ordered or to the question of what matters should be regarded as relevant on the taking of any such account. At one stage, counsel for the defendant submitted that the result of the plaintiff's absence, lack of communication and failure to contribute to the earning of income was that "she would not be entitled to any income from that property". Subsequently, that submission was neither developed nor expressly abandoned. It was conceded by the plaintiff that the defendant was entitled, on the division of any proceeds of sale of the subject leasehold, to receive an allowance in respect of actual capital expenditure to the extent to which the proceeds of sale could be attributed to enhancement of the value of the land as a result of the relevant improvements. Otherwise, there would appear to have been no submissions directed either to the defendant's entitlement, on the taking of any account, to the benefit of an allowance in respect of proper disbursements or in respect of his own work and labour or to the effect of any statute of limitations upon the plaintiff's entitlement on such an account. More important, the question whether, on the taking of an account of any rents or profits arising from the use of capital improvements, the plaintiff was entitled to participate in the benefit of the income of the improvements while being free of any obligation to make any contribution or allowance in respect of their cost, appears not to have been raised at all by counsel for the defendant. (at p112)
The notice of appeal filed on behalf of the defendant sought a new trial of the action on the ground of an alleged failure by the learned trial judge to grant to the defendant a sufficient adjournment of the trial of the action so as to enable the defendant properly to defend the action. Orders setting aside the order for sale and the order for an account or, alternatively, changing the content of any order for an account were sought on a number of other grounds. For present purposes, the grounds which remain of relevance relate to alleged laches, estopped by conduct and, as regards the order for an account, the applicability of the provisions of the Limitation of Suits and Actions Act, 1866-1867 (S.A.), which is in force in the Northern Territory. (at p112)

At the commencement of the hearing of the appeal, counsel for the defendant applied for leave to amend the notice of appeal by adding a further ground of appeal denying the jurisdiction of the court to make the order for sale. Leave to amend the notice of appeal was also sought so as to make clear that the attack on the order for an account extended to the making of any order at all and was not confined to a submission that the order extended beyond a relevant limitation period. In the course of argument, a further application was made for leave to amend the notice of appeal to enable the defendant more fully to attack the form of the order for an account. The question whether the defendant should be given leave to make all or any of these amendments was reserved and the court directed that the appeal proceed on the basis that leave to make the necessary amendments had been given and that the amendments had been effected. (at p113)
In my view, the defendant should be given leave to make all the proposed amendments to the notice of appeal. In so far as those amendments relate to the jurisdiction of the court to make any order for sale, it is not suggested that the plaintiff had refrained from leading any evidence which would have been led if the point had been taken in the court below and the ordinary reluctance of an appellate court to permit a point to be raised, for the first time, on the actual hearing of an appeal does not extend to the case where the point is a bare legal point which, if correct, means that the court below lacked jurisdiction to make the orders which it made. The position is not so clear in so far as the proposed amendments would raise questions relating to the order for an account. It will, however, appear from what is said hereunder that I am of the view that the circumstances are such that the defendant should not be precluded from raising, on this appeal, any argument as to the entitlement of the plaintiff to an order for an account or as to the appropriate form which any such order should take. Since the other members of the court are also of the view that the defendant should be permitted to amend the notice of appeal in the manner sought, I shall proceed to deal with the issues raised on the appeal on the basis that the desired amendments to the notice of appeal have been effected. (at p113)
The first argument advanced on behalf of the defendant on the appeal was that the orders made should be set aside and a new trial ordered on the ground that his Honour should have granted the defendant an adjournment of the hearing of the matter. (at p113)
The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances (Conroy v. Conroy (1917) 17 SR (NSW) 680, at p 682 ). Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is satisfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal Court of Australia Act 1976, s. 27) and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion. (at p114)
In Sackville-West v. Attorney-General (1910) 128 LT Journ 265 it was held by the United Kingdom Court of Appeal (Cozens-Hardy M.R., Moulton and Buckley L.JJ.) that: "although it could not be said that under no circumstances would the Court of Appeal be justified in interfering with the discretion of the learned judge in a court below as to the proper mode and time of trying an action, yet it would only be in the most extraordinary circumstances that an application to review the decision of the learned judge as to the conduct of the business in his own court could succeed; that the only case in which the Court of Appeal would so interfere would be if satisfied that the decision was such that, notwithstanding any exercise by the learned judge of the power of control which he would have over the action when it came on for trial, justice did not result and he had failed to see that such would be the effect of his decision" (1910) 128 LT Journ 265 That statement of principle has been quoted with approval in a number of subsequent cases (see, for example, Maxwell v. Keun (1928) 1 KB 645, at p 650 ; Conroy v. Conroy (1917) 17 SR (NSW), at p 683 ). It is of particular relevance to a case where the exercise of discretion has resulted in a refusal of an adjournment in that it recognizes the need to take into account, in considering the effect of a refusal to grant an adjournment, the control which the judge will enjoy over the action when it comes on for trial including, particularly in a case such as the present where no jury is involved, the power to deal with any particular applications for adjournments which may subsequently be made. (at p114)
The present matter was, as has been seen, listed to be heard on a day almost two years after its commencement. The plaintiff had travelled from America for the hearing. The letter from the defendant to the plaintiff's solicitors which was placed before his Honour indicated that the defendant's predicament resulted from his own deliberate action. The plaintiff's frail condition and the need to return to America and return to Australia if any lengthy adjournment were granted were also advanced by her counsel as factors supporting the refusal of any lengthy adjournment. Plainly, there were grounds for the view which his Honour formed that the matter should proceed either on the day fixed for the hearing or on the following day. As has been mentioned, his Honour's expression of that view was made in a context which made clear that the view that he was expressing was not one to which he was necessarily finally committed. Thereafter, counsel for the defendant made a number of particular applications for adjournment. All were granted. (at p115)
There is no basis whatever in the circumstances of the present matter for a finding that there was a failure by the learned judge properly to exercise his discretion in dealing with any of the applications for an adjournment that were made to him. To the contrary, I respectfully agree with the learned judge's exercise of his discretion on each occasion when a question of adjournment arose for his determination. His refusal to grant the adjournment "for so long as possible" which was initially sought was, in my view, correct. No subsequent application for an adjournment was refused. (at p115)
The defendant has not sought to place any fresh material before this Court in relation to the question of the adjournment of the proceedings. It has not been suggested that the defendant was, as a result of the refusal to grant a lengthy adjournment of the proceedings, precluded from calling any particular evidence which it was desired to call or that any particular evidence which would be of assistance to the defendant was not, in fact, called. The attack on any failure to grant an adjournment has not been made good. (at p115)
The defendant's next argument on the appeal was that the Supreme Court had no jurisdiction to make the order for sale which was made. It is common ground between the parties that any jurisdiction of the Supreme Court to make the order for sale must be found in the provisions of the Partition Act, 1881 (S.A.), which is in force in the Northern Territory. The sections of that Act conferring jurisdiction to make such an order (ss. 3, 4 and 5) are, in terms, limited to "(i)n an action for partition, where, if this Act had not been passed, a decree for partition might have been made". The argument advanced on behalf of the defendant was that such a decree for partition might not have been made in the circumstances of the present matter for two distinct reasons. First, that the provisions of s. 29 of the Darwin Town Area Leases Ordinance 1947 ("the Ordinance") would have precluded the making of such a decree. Second, that a court of equity would have declined to make such a decree by reason of the equitable defences of laches and estoppel by conduct. Implicit in the defendant's argument is the assumption that the words "where, if this Act had not been passed, a decree for partition might have been made" add to the prior reference to "an action for partition" at least the requirement that the circumstances of the particular case are such that the court would have had jurisdiction to make an order for partition. The validity of this assumption was not put in dispute by the plaintiff and, in view of the conclusion which I have in any event reached on the defendant's attack on the order for sale, I propose, for the purposes of the appeal, to accept it as valid. It should, however, be noted that, at the time the Partition Act, 1881 (S.A.) was enacted, Sir James Bacon V.C. had already expressed, in strong terms, the view that the corresponding provisions of the Partition Act, 1868 (U.K.) were the result of verbosity and added nothing to the words "(i)n an action for partition" (Pryor v. Pryor (1875) 19 Eq Cas 595, at p 598 and cf. Walker, The Partition Acts, 2nd ed. (1882), at p. 27). (at p116)
Section 29 of the Ordinance provides, for present purposes, that subject to s. 29A, each parcel of land included in a lease shall, except where a portion of the parcel is acquired by the Territory, at all times be held and occupied by or under the lessee as one undivided parcel. Section 29A provides for an application for approval to subdivide land that is subject to a lease under the Ordinance. Where approval to subdivide is obtained, the Ordinance prescribes a procedure for the grant of a new lease in respect of the various lots in the subdivision. It would appear to be common ground that there has not been any application for approval to subdivide the subject land. A court would plainly decline to make an order which would, in itself, involve a division of holding or occupation under a lease in breach of the provisions of s. 29 of the Ordinance. (at p116)
At the threshold of the defendant's argument based upon the provisions of s. 29, there lies a general problem of the construction of the sections of the Partition Act, 1881 (S.A.), which confer jurisdiction to make an order for sale (ss. 3, 4 and 5). The operation of each of those sections is, as has been mentioned, confined to an action for partition where, if this Act had not been passed, a decree for partition might have been made. On the assumption that the italicized words add a requirement or qualification to the words "an action for partition", the threshold problem concerns the identification of the temporal reference point for determining the legal context in which the question whether a decree for partition might otherwise have been made falls to be answered. Is the relevant context that into which the Partition Act, 1881 (S.A.) was introduced, namely, the law of the colony of South Australia at the time that Act commenced operation? Or is it the law operating at the time and in the place of the institution of the relevant proceedings, namely, the law of the Northern Territory on 14th December, 1976? Or is it the law operating at the time when the order for sale was made, namely, 9th October, 1978? Or is it some other, and if so what, legal context? (at p117)
The Partition Act, 1881 (S.A.) was based upon, and substantially adopted, the provisions of the Partition Act, 1868 (U.K.). It is facultative legislation in that it confers a wide power to make an order for sale in lieu of partition in circumstances where previously sale in lieu of partition was only available, with the assent of the court, if all parties agreed that a sale was the most beneficial way of disposing of their interests (see, Pryor v. Pryor (1875) 19 Eq Cas 595 ; North v. Guinan (1829) Beat 342 ). The legislation not only had the effect of making an order for sale available as a general alternative to an order for partition. It made the remedy of sale the preferred remedy in that, all other things being equal, an order for sale in lieu of an order for partition was to be made if an owner of a moiety requested sale and the owner of the other moiety sought actual partition. It was inevitable that the effect of the legislation would be that the alternative remedy of sale would displace the remedy of judicial partition as the ordinary order in a partition suit. By 1876, the author of the first published textbook on the United Kingdom legislation (Walker, The Partition Acts, 1st ed.) could comment that "the Court does not often now decree partition". (at p117)
In these circumstances, it would seem unlikely that it was the legislative intent that the general jurisdiction to make an order for sale should be confined to those circumstances in which, under the law as it might from time to time in the future exist, the increasingly rare order for actual partition of the relevant property might be made. It would seem more likely that it was the legislative intent that the circumstances in which the general jurisdiction to make an order for sale should exist would be those in which an order for partition might have been made at the time when the Act first spoke. The use of the words "might have been made" (and not "might be made") lends some support for the latter construction which is, in my view, the correct one. The words "if this Act had not been passed" were, on that construction, necessary for the reason that the temporal reference point is the time when the Act first operated and not the time immediately before its commencement. (See Walker, The Partition Acts, 2nd ed., p. 27; Joyce v. Joyce (1963) Qd R 139, at p 153 ; Patel v. Premabhai (1954) AC 35, at p 45 (where the point was left open); and cf. Pacini v. Pacini Unreported (Supreme Court of the Northern Territory, Blackburn J., 23rd November, 1967). .) It follows that the question whether a decree for partition "might . . . have been made" falls to be answered, in the present matter, in the context of the law of the colony of South Australia at the time when the Partition Act, 1881 (S.A.) commenced to operate. The resolution of that question involves a determination of the existence of jurisdiction to make an order for partition and not a preliminary trial to determine whether, in the exercise of jurisdiction, a court should, as distinct from might, have made such an order. (at p118)
If the provisions of s. 29 of the Ordinance comprised a general prohibition on the subdivision of any land within a designated area, the above conclusion would suffice to dispose of the defendant's argument for the reason that the provisions of an Ordinance made in 1947 plainly would not constitute any part of the legal context in which the question in point fell to be answered. The provisions of s. 29 do not, however, comprise any such general prohibition. They are restricted in their operation to land included in a lease under the Ordinance and constitute part of the definition of the obligations and rights of a lessee under a lease granted under the Ordinance. The provisions of s. 29 of the Ordinance may be irrelevant to the legal context in which the question whether a decree for partition might, in the circumstances of the case, have been made, falls to be answered. They are, however, relevant in that they constitute part of the circumstances of the case in that the joint property is property which cannot lawfully be divided otherwise than in accordance with the provisions of the Ordinance. The appropriate question, in the circumstances, is whether a decree for partition might, under the law of the colony of South Australia at the time the Partition Act, 1881 (S.A.) was introduced, properly have been made in respect of the estate of joint tenants under a lease granted in pursuance of a legislative enactment of the colony whose provisions corresponded to the provisions of the Ordinance. The answer to that question is to be found in the distinction between the making of a decree for partition and the carrying of it into effect. (at p118)
The usual decree which was made in a partition suit prior to the various Partition Acts did not effect an immediate subdivision of the property in respect of which the decree was made. The form of decree expressly recognized that actual subdivision might never be effected in that it reserved to the parties liberty to bring in proposals for a sale. If all the parties were agreed that a sale was the most beneficial way of disposing of their interests, the court would assent to the decree for partition being carried into effect by such a sale (Pryor v. Pryor (1875) 19 Eq Cas 595 ; North v. Guinan (1829) Beat 342 ). It was stated by their Lordships in Patel v. Premabhai: "It is plain that a sharp division is drawn between the decree and the carrying out of the division of the land under it. Indeed, the decree might have been carried out in one of two ways, either by dividing the property or by a sale by consent of all the parties, and if the latter course had been followed it could not be said . . . that a partition decree had not been made" (1954) AC, at p 47 . And further: "'a decree for partition' and 'division' or 'subdivision' are two different matters" (1954) AC, at p 45 . (at p119)
The requirement of s. 29 of the Ordinance that land be held and occupied as one undivided parcel would not preclude the actual making of a decree for partition. The making of such a decree would not, in itself, involve a division of the holding or occupation of the land in respect of which the decree was made. The existence of the provisions of s. 29 might lead the court either to frame a decree for partition in such a way as to ensure that the necessary approval for subdivision was obtained before the decree could be carried into effect by actual division of the property, or to provide, by ancillary orders, for the actual making of an application for approval of the necessary subdivision (see, for example, the form of order made in Dougan v. Ley (1946) 71 CLR 142, at pp 145, 152, 154 ). Those provisions might, in certain circumstances, lead the court to decline to make an order for partition on the grounds that it would be futile to do so (North v. Guinan (1829) Beat 342 ). There is nothing, however, in the provisions of s. 29 of the Ordinance which deprives the court of its jurisdiction to make a decree for partition or which operates to deprive the present proceedings of their character as an action for partition where, if the relevant Partition Act had not been passed, a decree for partition "might have been made". (at p119)
In Patel v. Premabhai (1954) AC 35 the Judicial Committee of the Privy Council held that a provision in the Subdivision of Land Ordinance of Fiji, 1937, to the effect that land to which the Ordinance applied should not be subdivided without the prior approval of a board established under the Ordinance would not, for the purposes of the relevant provisions of the Partition Act, 1868 (U.K.), which was in force in Fiji, have the effect of preventing the making of a decree for partition of land notwithstanding that the necessary approval for subdivision had not been obtained. Their Lordships examined the distinction between the making of a decree for partition and the carrying of it into effect and concluded that a decree for partition could be made even if the actual division could not be effected without breach of the terms of the Fijian Ordinance. "It is," their Lordships said, "not the making of the decree which is prohibited, but the subdivision of the land which would otherwise result from the making of the decree" (1954) AC, at p 47 . They added: "Their Lordships' view is in no way altered by the fact that under section 11 of the Ordinance the land in question in the present instance could not, owing to its diminutive size, be divided save in exceptional circumstances, the question being not Could it be divided? But Could a decree for partition be made? (at p120)

"Nor is the definition of 'subdivide' in section 3(a) inimical to this opinion. All that that definition means is that a division or subdivision takes place within the meaning of the Ordinance, if the land is in fact divided, whether it is divided for the purpose of sale or conveyance or transfer or lease or sublease or mortgage, making an agreement, partition or otherwise dealing with the property. But it is not divided merely because an order for partition is made: there is nothing to prohibit the making of such an order. What is forbidden is the carrying out of the order by actual partition unless and until the approval of the board, set up by the Ordinance, has been obtained. . . . (at p120)
"On the true construction of the Ordinance all that is forbidden is the actual division of the land or the carrying out of a decree for partition without the consent of the board. The making of a decree is not prohibited, and as such a decree might have been made (though it could not be implemented by actual division of the property) a direction for sale of the property is permissible under the terms of the Act of 1868" (1954) AC, at pp 47-48 . (at p120)
It was submitted on behalf of the defendant that the requirement in s. 29 of the Ordinance that the subject land be held and occupied as one undivided parcel was quite different from the prohibition upon subdivision which was contained in the Fijian Ordinance in Patel's case (1954) AC 35 . In my view, this is not so. The Fijian Ordinance contained (s. 3) a wide definition of "subdivide" which included "partition" and "parting with the possession of any part thereof". The requirement in the Ordinance and the prohibition in the Fijian Ordinance were both subject to the power of a public authority to approve subdivision. In neither the present case nor the Fijian case was such approval obtained. In my view, the decision of the Privy Council in Patel's case supports the conclusion that the provisions of s. 29 of the Ordinance would not preclude the making of a decree for partition. That conclusion is contrary to the decision of Blackburn J., as he then was, in Pacini v. Pacini Unreported (Supreme Court of the Northern Territory, Blackburn J., 23rd November , 1967). but accords with the reasoning of Jeffriess J. of the Supreme Court of Queensland in Joyce v. Joyce (1963) Qd R 139 and of Jones J. of the Supreme Court of Western Australia in De Campo Holdings Pty. Ltd. v. Cianciullo (1977) WAR 56, at p 60 It also accords with the decisions of various single justices of State Supreme Courts that a legislative provision prohibiting or rendering ineffective a transfer or sale without consent does not, as a matter of jurisdiction, preclude the making of an order for sale in a case where the necessary consent has not been obtained for the reason that the making of the order for sale, as distinct from carrying it into effect, does not involve any breach of the relevant legislative prohibition (see Blennerhassett v. Blennerhassett (1957) VR 214 ; Fairweather v. Fairweather (1957) 59 WALR 25 ; Henderson v. Henderson (1963) WAR 112 ; Hunt v. Hunt (1966) SASR 169 ; cf. Bielfield v. Bielfield (1956) QWN 4 and Ross v. Ross (1962) QWN 31 , and see also the judgment of Blackburn J. in Witchard v. Witchard (1975) 6 ACTR 31, at pp 34-35 ). (at p121)
The defendant's argument based on s. 29 of the Ordinance therefore fails. (at p121)
The defendant, on the hearing of the appeal, relied on laches and estoppel by conduct to attack the order for sale in two different ways. First, it was said that, by reason of the alleged laches and the alleged estoppel, an order for partition might not have been made in the circumstances and that, for that reason, the matter was not within the relevant provisions of the Partition Act, 1881 (S.A.). This argument ignores the distinction between the question whether jurisdiction to make an order for partition would have existed and the question whether an order for partition ought to have been made in exercise of that jurisdiction (see supra). Alternatively, it was submitted that, even if the Supreme Court had jurisdiction to make an order for partition or sale, it should have declined to do so by reason of the alleged laches and the alleged estoppel. Both arguments fail in limine for the reason that no factual foundation for the alleged laches and the alleged estoppel by conduct as regards the institution or maintenance of proceedings for partition or sale has been made out. In these circumstances, it is unnecessary to consider whether a defence of laches or estoppel is, in any event, available in an action by a joint legal owner of property for an order for partition or sale (see, for example, Bray v. Bray (1926) 38 CLR 542, at pp 545, 546 ; Scates v. Scates (1962) VR 398 ; Peck v. Peck (1965) SASR 293, at p 297 and Foster, The Law of Joint Ownership and Partition of Real Estate (1878) p. 110ff.). The defendant's attack on the order for sale cannot be sustained. (at p121)
There remains for consideration the defendant's attack on the order for an account. That order was that, "pursuant to O. 36 of the Supreme Court Rules the Master to take an account of the rent and profits received by the defendant in respect of the said land since 5th September, 1961". Order 36, r.10 of the Supreme Court Rules (N.T.) provides that upon the taking of any account directed by any judgment or order all just allowance shall be made without any direction for that purpose. Order 36 contains provisions as to procedural steps to be observed on the taking of an account and indicates a continuing active involvement of the judge in determining disputed questions which might arise on the taking of an account (e.g., r.6 "only such items as are contested or surcharged shall be brought before a Judge in Chambers"). Otherwise, the provisions of O. 36 do not supplement the content of the order for an account which was made. (at p122)
It has already been mentioned that it was submitted, on behalf of the defendant, that the result of the plaintiff's absence, lack of communication and failure to contribute to the earning of income was that "she would not be entitled to any income from that property". That submission was left undeveloped. In so far as it may have been intended to raise an equitable defence of laches or estoppel by conduct to an order for an account, the factual basis for it has not been made out. The learned judge would appear to have received no other assistance from the defendant on either the question whether an account should be ordered or on the form which any order for an account should take. The difficulty which resulted is reflected in his Honour's reasons for judgment where he commented that the question of the applicability of a statute of limitations "may have to be litigated at a later stage" and added that he was aware that in making an order that the accounts be taken by the Master he may have been imposing an unreasonable burden on the Master. (at p122)
The order which his Honour made corresponded with that sought by the plaintiff in the statement of claim. In its reference to an account "of the rents and profits received by the defendant in respect of the said property", it left unresolved the question whether all of the defendant's receipts in the course of what the statement of claim acknowledged as being "a business" were to be the subject of the account. It did not specify what types of expenditure were to be allowed in the defendant's favour upon the taking of the account or whether any allowance was to be made in the defendant's favour for his own time and efforts. As his Honour recognized, the order ignored the question of the possible application of a relevant period of limitation of action. The statement of claim did not, in terms, seek an order either for payment or for an allowance from the proceeds of sale of any amount found due on the account and no such order was made. It may have been envisaged that the matter would come back before the learned judge either in the course of the taking of the account or after the account had been taken and that these questions, which had been ignored in the submissions of the parties, could then be resolved. (at p122)
Counsel for the plaintiff conceded that the Limitation of Suits and Actions Act, 1866-1867 (S.A.), was applicable to the plaintiff's claim for an account and that the order for an account which was made should be limited to the period commencing six years before the issue of the writ. It was also conceded that the defendant was entitled, on the taking of an account, to an allowance for his time and labour in the earning of the rents and profits for which he was liable to account. These concessions were only made on the hearing of the appeal and the order for an account should be modified to reflect them. Even after such modification, however, the order made would leave unresolved the precise definition of what receipts should be included and what outgoings should be allowed on the taking of the account. The definition of those receipts and outgoings goes to the basis on which an account is to be taken and involves not uncomplicated questions of law and fact. Those questions should, to the extent that they are not foreclosed to the defendant, be decided at this stage and not left to be resolved either on the taking of the account or subsequently upon further consideration by the court after attempts to take the appropriate account have been completed. In the light of the resolution of those questions, the order for an account should be varied so as to make clear precisely what receipts and outgoings of a revenue or capital nature are to be brought to account by the defendant and allowed in his favour (see Sanguinetti v. Stuckey's Banking Company (No. 2) (1896) 1 Ch 502, at p 505 ). (at p123)
The order for an account, made in broad and general terms, was that sought by the plaintiff in her statement of claim. It was made in that form largely as a result of the failure of the defendant to address submissions as to the modifications to it which should be made in his favour. With some hesitation, I have reached the conclusion that, in view of the fact that no account has as yet been taken, the defendant should not be foreclosed from relying, at this stage, upon any of the submissions which have been made on his behalf on the question of the order for an account. In reaching this conclusion, I have been influenced by the fact that the statement of claim was defective in that it alleged neither that the defendant had failed to account for rents and revenue received by him from the common property nor that the plaintiff did not know the state of the accounts (Re Tolman's Estate (1928) 23 Tas LR 29 ), that no order for payment of the amount found to be due on the taking of an account has been made, that the order made would inevitably lead to disputed questions of law before the Master and that the questions raised, on the appeal, by the defendant's submissions as to the appropriate form of any order for an account may have been thought by both parties to remain open to dispute either on the taking of the account or, subsequently, upon further consideration by the court. (at p123)
The cases in which one co-owner can obtain an account of receipts from another co-owner who has had the sole use of the joint property are, except where the sole use has been the result of agreement (whether express, implied or imputed), holding over or actual exclusion, limited to those cases where one co-owner has received more than his share of the rents or other revenues of the common property (see, McCormick v. McCormick (1921) NZLR 384, at p 385 ; Henderson v. Eason (1851) 17 QB 701; 117 ER 1451 ; Rees v. Rees (1931) SASR 78, at p 81 ; Luke v. Luke (1936) 36 SR (NSW) 310, at pp 313-314 ; Scapinello v. Scapinello (1968) SASR 316, at p 320 ). The plaintiff does not allege any relevant agreement between the defendant and herself. The statement of claim did no more than allege that the defendant was, and for some years had been, carrying on the business of permitting persons to occupy cabins and to park caravans on the land for reward to himself. The evidence indicated that "the business" in question consisted of the business of "a caravan and cabin park" and that occupation fees were obtained for the use (to use neutral terms) of furnished flats, single rooms and caravans as well as for the use of parking and associated facilities for caravans. The receipts for which the defendant would be liable to account on the plaintiff's claim are limited to those receipts which can properly be regarded as rents and revenue of the common property itself as distinct from profits which the defendant may have made by his use and occupation of the common property (e.g., fees for services and for use of items of equipment). Plainly, the identification of what properly constituted rents and revenue of the common property in that sense required further evidence as to the precise nature of the receipts of the business which the defendant carried on on the land and could involve disputed questions of fact and law. In the absence of agreement between the parties, the case should be remitted to the Supreme Court for the ascertainment of the relevant facts and the determination of any such disputed questions. The question of what outgoings should be allowed to the defendant on the taking of the account can only be resolved in the light of whether the appropriate order for an account embraced all or some only (and if so which) of the defendant's receipts from his activities on, and in respect of, the land. The question of outgoings also raises the question of what, if any, allowance should be made to the defendant in respect of expenditure on capital improvements. (at p124)
Senior counsel who appeared for the defendant on the hearing of the appeal directed the attention of the court to a number of passages in the evidence which are relevant to the determination of the entitlement of the defendant to an allowance for capital expenditure upon the taking of an account of rents and receipts received by the defendant from the joint property. The plaintiff gave evidence that there was no question in her mind that there was any danger that the lease would be forfeited by reason of a failure to comply with the covenant requiring the erection of buildings on the land for the reason that she knew that the defendant "would be continuing with improvements and so on". She added that, during her absence: "I was in constant contact with others in the Territory and I did know that improvements were being made and so on . . .". She also gave evidence that it was the practice between the defendant and herself that "while one person was managing the property, living there, and the other was away, to use the funds to improve the property, and take care of maintenance, etc.". This evidence, which was largely left unexplored, plainly supported the inference that, if some "rents and profits" received by the defendant were, as would seem likely, applied in the making of improvements, they were so applied with the authority of the plaintiff. If this were the case, the defendant was, on the taking of an account, entitled to an allowance for any "rents and profits" which had been so applied. There remains for consideration the question of the defendant's entitlement to any additional allowance in respect of his expenditure on improvements on the subject land. (at p125)
As a general rule, capital expenditure upon permanent improvements to land by one joint owner without the authority of his co-owner creates a passive equity which attaches to the land. The joint owner making the improvements is not entitled to bring proceedings for contribution against his co-owner. In circumstances where his co-owner (or a successor in title of his co-owner other than a purchaser for value without notice) would otherwise unfairly benefit under an order in equity (including partition or sale of the property), he is entitled to an allowance for his expenditure on such improvements to the extent to which they result in the present enhancement of the value (or the price on sale) of the land (see, generally, Leigh v. Dickeson (1884) 15 QBD 60 ; Williams v. Williams (1899) 81 LT 163 ; Re Jones; Farrington v. Forrester (1893) 2 Ch 461 ; Brickwood v. Young (1905) 2 CLR 387 ; Re Byrne (1906) 6 SR (NSW) 532 ; McMahon v. Public Curator of Queensland (1952) QSR 197 ; Noack v. Noack (1959) VR 137 and D. Mendes da Costa, Co-Ownership under Victorian Land Law, 3 Melbourne University Law Review, 137 at p. 138ff.). The operation of these principles, on a sale under the Partition Act, was succinctly stated by A.H. Simpson C.J. in Eq., in Boulter v. Boulter (1898) 19 LR (NSW) (Eq) 135 in the following passage: "Where an owner of an undivided interest in land spends money in improving the property so that on a sale under the Partition Act it fetches an enhanced price, a Court of Equity in dividing the proceeds of sale will not allow the other co-owners to take their shares of the increased price without making an allowance for what has been expended to obtain that increased value: Leigh v. Dickinson (sic). This course of action cannot inflict any injustice on the other co-owners, for it takes nothing out of their pockets, it only prevents them putting into their pockets moneys obtained by the expenditure of another person, unless they recoup him such expenditure. In no case can the co-owner who has improved the property obtain more than his outlay, though such outlay may have trebled the value of the property. And, on the other hand, the increase in the price obtained is the limit of what he can receive, though his actual outlay may be far larger" (1898) 19 LR (NSW) (Eq), at p 137 . The applicability of this general rule was conceded, on the hearing, by counsel for the plaintiff and his Honour directed that there should be paid to the defendant from the proceeds of sale "that sum, if any, which is properly attributable to the improvements effected on the said land by the defendant". It is clear, in the context of his Honour's reasons for judgment in which the above passage from Boulter v. Boulter (1898) 19 LR (NSW) (Eq) 135 is quoted with approval, that the order related to the amount by which the sale price could be seen to have been increased by the improvements effected by the defendant. No other order or allowance was made or directed in the defendant's favour in respect of his capital expenditure upon improvements. The evidence indicated that, on the basis of the orders made, the defendant would receive no allowance in respect of the major part of the money which he had spent on improvements on the subject land. A valuation which was placed in evidence by the plaintiff indicated that the total increment in value of the land as a result of the improvements did not exceed $15,000. It was, no doubt, for that reason thought unnecessary to limit the amount representing the increment in the price received to be allowed in the defendant's favour to the amount actually expended in effecting the improvements. (at p126)
Senior counsel for the defendant on the appeal expressly disclaimed any suggestion that the defendant was entitled to assert any independent claim for contribution to the cost of capital improvements beyond the amount which the learned judge ordered to be paid from the proceeds of sale. It appears from the evidence that, with the possible exception of any occupation fees received in respect of the hut erected by the plaintiff and subsequently improved by the defendant and in respect of the use of the site by caravans, any rents and profits received by the defendant in respect of the land were received as a consequence of the use of improvements effected by him. A question arises whether the equitable principles underlying the defendant's entitlement to a limited allowance from the proceeds of sale of his expenditure on improvements (to the extent that they result in an increased price on sale) are, in the circumstances of the case, also applicable to preclude the plaintiff from being entitled, upon accounts upon partition or sale, to receive a one-half share of any rents and profits resulting from the use of the improvements without making a full allowance in favour of the defendant in respect of his expenditure upon those improvements. In my view those principles do so apply. (at p127)

In Leigh v. Dickeson (1884) 15 QBD 60 Cotton L.J. explained the right of the co-owner to receive a limited allowance for capital expenditure upon sale or partition as follows: "in a suit for a partition it is usual to have an inquiry as to those expenses of which nothing could be recovered so long as the parties enjoyed their property in common; when it is desired to put an end to that state of things, it is then necessary to consider what has been expended in improvements or repairs: the property held in common has been increased in value by the improvements and repairs; and whether the property is divided or sold by the decree of the Court, one party cannot take the increase in value, without making an allowance for what has been expended in order to obtain that increased value; in fact, the execution of the repairs and improvements is adopted and sanctioned by accepting the increased value" (1884) 15 QBD, at p 67 . Again, in Swan v. Swan (1820) 8 Price 518; 146 ER 1281 , the Court of Exchequer Chamber similarly explained the right of one joint owner ("the defendant") to such an allowance for capital expenditure against another joint owner ("the plaintiff"): "Although, in point of law, the Defendant may not, strictly speaking, have any lien on the premises, yet if he has been at expense in improving them, as stated, beneficially for the Plaintiff, the Plaintiff has clearly no right to take advantage of that expenditure, without making any allowance" (1820) 8 Price, at p 519; 146 ER, at p 1282 . (See, also, Attorney-General v. Magdalen College, Oxford (1854) 18 Beav 223, at p 255; 52 ER 88, at pp 100-101 ; Vyse v. Foster (1872) LR 13 Eq 602 ). (at p127)
In the present case, there is no suggestion that the plaintiff was excluded from the subject land against her will. She voluntarily left it in the occupation of the defendant in the expectation that the defendant would spend money on improvements and, by so spending it, preserve their joint leasehold interest in the land by complying with the covenant requiring the making of improvements. She was aware of the defendant's activities on the land and the fact that he was effecting improvements and made no complaint in that respect. In the circumstances, the plaintiff is not entitled to a one-half share of the rents and profits which the defendant received in respect of the subject land as a result of the use of the improvements which he had effected while denying the defendant's entitlement to an allowance in respect of their cost. In my view, she is, in the circumstances, only entitled voluntarily to adopt the benefit of the improvements by claiming and receiving one-half of any profit resulting from their use at the price of being liable to contribute to, or make an allowance in respect of, their cost over and above the amount included in the restricted allowance to which the defendant was independently entitled on partition or sale. If she accepts the benefit of the profit earned, she must bear her share of the burden of earning it. The case is of the type referred to by Sir William Brett, M.R., in Leigh v. Dickeson when he said: "Sometimes money has been expended for the benefit of another person under such circumstances that an option is allowed to him to adopt or decline the benefit: in this case, if he exercises his option to adopt the benefit, he will be liable to repay the money expended; but if he declines the benefit he will not be liable" (1884) 15 QBD, at pp 64-65 . (at p128)
In the result, the order for an account made by the Supreme Court should be set aside. In the absence of agreement between the parties as to appropriate orders, the matter should be remitted to the Supreme Court for the hearing of further evidence to enable the definition, with some precision, of the receipts and outgoings to be included and allowed on the taking of the account. In view of the concessions made by the plaintiff, any account ordered by the Supreme Court should be limited to the period of six years prior to 14th December, 1976, and the defendant should, on the taking of the account, be allowed an amount as recompense for his work and labour in deriving any receipts included in the amount. The Supreme Court should determine whether any receipts to be included in the account ordered had been applied to the making of improvements in accordance with a general arrangement between the plaintiff and defendant. If so the defendant should, on the taking of any such account, be entitled to an allowance in respect of any receipts included in the account which had been so applied. In the event that the plaintiff persisted in seeking an account of receipts which had been derived by the defendant as a result of the use of the improvements which he had effected, the orders made for distribution of the proceeds of sale should be varied so as to allow the full reimbursement of the defendant (to the extent that the proceeds of sale allow) of all expenditure upon capital improvements whose use has contributed to the receipts the subject of the account, to the extent that a credit for such expenditure had not already been allowed upon the taking of an account. In the circumstances of the case, the sale of the property should await the outcome of any such further hearing before the Supreme Court (but not the actual taking of the account) so that the respective rights and obligations of the parties might be sufficiently defined to enable each of them to make an informed decision on any questions which might arise on, or in relation to, any auction or other disposition of the joint property. (at p129)
At the conclusion of argument on the appeal, counsel for the parties informed the court that, in the event that the court came to the conclusion to which I have come as to the appropriate orders to be made for disposing of the appeal and that that conclusion was sustained in the event of an appeal from this Court, the parties were in agreement on orders which would, if made, avoid any need for the matter to be remitted to the Supreme Court. Those orders were reduced to writing by the parties as "Short Minutes of Proposed Orders". (at p129)
I would dismiss the appeal in so far as it relates to the orders for sale made by the Supreme Court and allow the appeal in so far as it relates to the order for an account. I would vary the orders made by the Supreme Court by substituting for them the orders set out in the short minutes of proposed orders submitted by the parties. (at p129)

ORDER

Appeal allowed in part. Orders granting leave to amend notice of appeal and that the subject land be sold out of court by the respondent under the direction of a judge in chambers.

[1979] FCA 85

29 AUGUST 1979