Stewart v Owen - [2020] VSC 175

60 VR 341

STEWART v OWEN Supreme Court of VictoriaForbes J 24 March, 15 April 2020[2020] VSC 175Real property — Co-Ownership — Dispute between tenants in common — Application to Victorian Civil and Administrative Tribunal for orders for sale of property and distribution of proceeds of sale — Whether pt IV of the Property Law Act 1958 confers jurisdiction on the Tribunal to make declaration and order a co-owner to transfer interest in land to a co-owner — Whether correct legal test for imposition of constructive trust applied — Property Law Act 1958 (Vic), ss 225, 228, 232, 233 — Victorian Civil and Administrative Tribunal Act 1998, s 124.Administrative law — Victorian Civil and Administrative Tribunal — Jurisdiction — Original jurisdiction — Sale or division of co-owned land or goods — Orders — Declaration — Whether authority to determine equitable interests in land — Whether authority to order transfer of interest between co-owners — Property Law Act 1958 (Vic), ss 225, 228, 232, 233 — Victorian Civil and Administrative Tribunal Act 1998, s 124.

The applicant and respondent were co-owners as tenants in common of a residential property, in three equal undivided shares, the respondent being the registered proprietor of two shares and the applicant of one.

The applicant applied to the Victorian Civil and Administrative Tribunal (Tribunal) under pt IV of the Property Law Act 1958 (Vic) (PLA) for sale of the property, distribution of the proceeds of sale, orders for compensation, and accounting between co-owners. The respondent sought a declaration by the Tribunal that the applicant held his share beneficially for her and an order that the applicant transfer his interest to her.

Section 225 of the PLA provided that a co-owner of land or goods might apply to the Tribunal for orders to be made in respect of that land or those goods. Section 228 empowered the Tribunal to make any order it thought fit to ensure that a just and fair sale or division of land or goods occurred. Sections 232 and 233 of the PLA contained ancillary provisions (set out in the judgment at [18]). Section 124 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) provided to the effect that the Tribunal might make a declaration concerning any matter in a proceeding instead of, or in addition to, other orders.

The Tribunal found that the respondent was the sole owner in equity of the property and made declarations that the parties held their respective registered interests in the land upon trust for the respondent and granting the applicant a charge to secure an amount purchase of the property. The Tribunal ordered that the applicant execute a transfer of his registered interest to the respondent upon payment to him of the charged amount.

The applicant sought leave to appeal to the Supreme Court on two questions of law. First, did 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.

Continue reading Stewart v Owen

Details

AGLC: Stewart v Owen [2020] VSC 175
Case: [2020] VSC 175
Decision Date: 15/04/2020

CaseChat Overview and Summary

This appeal involved a dispute between co-owners of a residential property, the applicants seeking orders for sale of the property, distribution of the proceeds of sale, compensation and accounting between co-owners. The respondent sought a declaration by the Tribunal that the applicant held his share beneficially for her and an order that the applicant transfer his interest to her. The Tribunal found that the respondent was the sole owner in equity of the property and made declarations that the parties held their respective registered interests in the land upon trust for the respondent and granting the applicant a charge to secure an amount purchase of the property. The Tribunal ordered that the applicant execute a transfer of his registered interest to the respondent upon payment to him of the charged amount. The applicant sought leave to appeal to the Supreme Court on two questions of law. First, did the Tribunal have jurisdiction to make a declaration that a co-owner could hold their interest in land beneficially for another co-owner and, if so, could such a declaration compel a transfer of the legal interest between co-owners? Secondly, if the jurisdiction was found to exist, did the Tribunal correctly identify or apply the legal test in its imposition of a constructive trust on Mr Stewart’s interest in the property? The Court granted leave to appeal and allowed the appeal, holding that the Tribunal did not have jurisdiction to make a declaration that a co-owner could hold their interest in land beneficially for another co-owner and, if so, could such a declaration compel a transfer of the legal interest between co-owners and that the Tribunal did not have sufficient grounds to impose a constructive trust.

Orders