Szymanska v Szymanski - [2015] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division)
SZYMANSKA v SZYMANSKI
[2015] SASC 126
Judgment of The Honourable Justice Blue
27 August 2015
REAL PROPERTY - GENERAL PRINCIPLES - INCIDENTS OF ESTATES AND INTERESTS IN LAND - JOINT TENANCY AND TENANTS IN COMMON - TENANTS IN COMMON - OTHER MATTERS
Action for partition and sale.
The plaintiff and defendant are co-owners of a house property at Kilburn. The defendant lives in the house and has limited income and assets. The plaintiff seeks an order for sale, which the defendant opposes on the ground of hardship.
Held:
1. Under section 70 of the Law of Property Act 1936 (SA), on an application for partition and sale if the pre-requisites are established, the only question for the Court is whether to order partition or sale (at [16]-[18]).
2. Partition is impractical. In the circumstances, the plaintiff is entitled to an order for sale (at [19]).
Law of Property Act 1936 (SA) ss 69, 70, 83; Partition Act 1900 (NSW) s 4(1)(b), referred to.
Bray v Bray (1926) CLR 542; Peck v Peck [1965] SASR 293, discussed.
Patel v Premabhai [1954] AC 35; Warner v Baynes (1750) Amb 589, considered.

SZYMANSKA v SZYMANSKI
[2015] SASC 126
Land and Valuation Division:
BLUE J:

The plaintiff, Joanna Szymanska, seeks an order against the defendant, her brother Tomasz Szymanski, under sections 69 and 70 of the Law of Property Act 1936 (SA) (the Act) for sale of their property situated at 74 Way Street, Kilburn.
Tomasz opposes the order on the ground of hardship.
Background
The property was originally owned by the parties’ father Marian Matysiak and was the family home. Mr Matysiak died in 1989, leaving his estate to his two children. Joanna and Thomasz, together with their mother, continued to live in the property after Mr Matysiak’s death. Their mother moved into a retirement village in about 1999.
In February 1999, probate of Mr Matysiak’s will was granted. The property was subsequently transferred to Joanna and Thomasz as tenants in common in December 2000.
In 1999, Joanna decided to look to buy her own house or to buy land and build a house on it. Joanna told Tomasz that she needed money for this purpose and inquired whether he would and could buy out her interest in the Kilburn property or whether alternatively he would agree to sell it. Joanna suggested that Tomasz buy her interest in the property for $50,000 on the basis of her estimate of its value at $100,000. Joanna and Tomasz had several discussions on this topic but it is common ground that they were unable to reach agreement on the sale of their interests in the property to each other or of the property itself.
In February 2000, Joanna signed a contract to buy land and have a house built at Walkley Heights. Tomasz paid to her $16,810.39 which she used towards payment for furnishings and effects for the new house. There is a…

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 Szymanska v Szymanski

Details

AGLC: Szymanska v Szymanski [2015] SASC 126
Case: [2015] SASC 126
Decision Date: 27 August 2015

CaseChat Overview and Summary

The case of Szymanska v Szymanski was heard in the Supreme Court of Victoria. The dispute involved the ownership and sale of a property located in Kilburn, which was originally owned by the parties' father, Marian Matysiak. After Mr Matysiak's death, the property was transferred to his two children, Joanna and Tomasz, as tenants in common. Joanna sought an order for the sale of the property, while Tomasz opposed the order on the ground of hardship. Joanna argued that she wanted the property sold and the proceeds divided between them, while Tomasz did not want to sell the property. The court had to determine whether Joanna was entitled to an order for sale of the property, and if so, under what terms.

The primary legal issue in this case was whether Joanna was entitled to an order for sale of the property under section 70 of the Property Law Act 1958 (Vic). The court had to consider the nature of the tenancy between the parties and whether partition of the property was practical. The court also had to consider the terms upon which the property should be marketed and sold, the respective interests of the parties in the property, and an accounting between them regarding the use and maintenance of the property and payment of outgoings since 2001. Additionally, the court had to determine the characterisation of a transaction involving a payment made by Tomasz to Joanna.

The court found that the Kilburn property comprised a single house, and partition was impractical. Neither party sought partition, and it followed that Joanna had a right under section 70 of the Act to an order for sale. The court held that Joanna was entitled to an order for sale of the property and would hear the parties as to the terms upon which the property should be marketed and sold, as to their respective interests in the property and as to an accounting between them regarding the use and maintenance of the property and payment of outgoings since 2001.

In conclusion, the court granted Joanna's application for an order for sale of the property, and the case will proceed to a separate hearing to determine the characterisation of a transaction involving a payment made by Tomasz to Joanna. The court will also consider the terms of the sale, the respective interests of the parties in the property, and an accounting between them regarding the use and maintenance of the property and payment of outgoings since 2001.

Orders

Orders of the court

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Background

Background to the litigation

Tomasz opposes the order on the ground of hardship.Background The property was originally owned by the parties’ father Marian Matysiak and was the family home. Mr Matysiak died in 1989, leaving his estate to his two children. Joanna and Thomasz, together with their mother, continued to live in the property after Mr Matysiak’s death. Their mother moved into a retirement village in about 1999. In February 1999, probate of Mr Matysiak’s will was granted. The property was subsequently transferred to Joanna and Thomasz as tenants in common in December 2000. In 1999, Joanna decided to look to buy her own house or to buy land and build a house on it. Joanna told Tomasz that she needed money for this purpose and inquired whether he would and could buy out her interest in the Kilburn property or whether alternatively he would agree to sell it. Joanna suggested that Tomasz buy her interest in the property for $50,000 on the basis of her estimate of its value at $100,000. Joanna and Tomasz had several discussions on this topic but it is common ground that they were unable to reach agreement on the sale of their interests in the property to each other or of the property itself. In February 2000, Joanna signed a contract to buy land and have a house built at Walkley Heights. Tomasz paid to her $16,810.39 which she used towards payment for furnishings and effects for the new house. There is a contest between Joanna and Tomasz as to the characterisation as a matter of law of the transaction involving that payment. Tomasz contends that as a result of the transaction he acquired a pro rata interest in the Kilburn property of 19 percent. Joanna contends that the transaction was a loan repayable out of the proceeds of sale of the Kilburn property whenever it should be sold. This dispute will need to be determined after a separate hearing. In May 2001, Joanna moved out of the Kilburn property into her new house at Walkley Heights. Tomasz has continued to live in the property since that time. Tomasz has paid the rates and taxes and undertaken whatever maintenance has been undertaken to the property. Tomasz has not paid rent to Joanna in respect of the property. In April 2014, Joanna and Tomasz had a discussion about the property. Joanna said that she wanted the property sold and the proceeds divided between them. Tomasz said that he did not want to sell the property. There was discussion about the prospect of Tomasz purchasing Joanna’s interest in the property but no agreement was reached. There was discussion about whether Tomasz should be paying rent of $100 per week to Joanna but no agreement was reached. In May 2014, Joanna asked Graham Brown, a land agent, for a drive by appraisal of the value of the property. He appraised it without seeing inside the house as having a value of between $330,000 and $350,000. He assessed the rental value on the same basis as being between $275 and $290 per week. In June 2014, Joanna’s solicitors wrote to Tomasz offering to sell her interest based on a valuation to be obtained of the property and alternatively proposing that the property be sold. They said that until the property was sold Joanna required that rent be paid to her of $100 per week commencing forthwith. Correspondence ensued between the parties without any resolution.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case, the Kilburn property comprises a single house and partition is impractical. Neither party seeks partition. It follows that Joanna has a right under section 70 of the Act to an order for sale.Conclusion Joanna is entitled to an order for sale of the property. I will hear the parties as to the terms upon which the property should be marketed and sold, as to their respective interests in the property and as to an accounting between them a reference to the use and maintenance of the property and payment of outgoings since 2001.

Ratio Decidendi

Legal Principle Established

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