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…
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.
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AGLC
Squire v Rogers [1979] FCA 85
Case
[1979] FCA 85
Decision Date
CaseChat Overview and Summary
The case of Squire v Rogers involved a dispute between co-owners of a property in South Australia. The appellant, Squire, occupied the property and operated a business from it, while the respondent, Rogers, did not contribute to the improvements made by Squire. The dispute centred on the question of whether Rogers was entitled to a share of the income generated by the improvements made by Squire, and whether Squire was entitled to an allowance for his work and labour. The case was heard in the Supreme Court of South Australia.
The legal issues before the court were whether the respondent co-owner was entitled to benefit from income generated by improvements made by the appellant without contributing to those improvements, and whether the appellant was entitled to an allowance for his work and labour. The court also considered the effect of the Limitation of Suits and Actions Act, 1866-1867 (S.A.) on the case.
The court found that the respondent co-owner was not entitled to benefit from income generated by improvements made by the appellant without contributing to those improvements. The court held that the appellant was entitled to an allowance for his work and labour, as he had made capital expenditures on the property and carried on a business for reward. The court also found that the Limitation of Suits and Actions Act, 1866-1867 (S.A.) did not apply to the case, as it only applied to actions for recovery of land, and not to actions for partition or an account of rents and profits.
The final orders of the court were that the appellant was entitled to an allowance for his work and labour, but not for the capital expenditures made on the property. The court also ordered that the property be partitioned between the parties, with the appellant receiving compensation for his improvements and work and labour.