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Trainor v Trainor

Trainor v Trainor

Case [2021] WASC 40 18 February 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TRAINOR -v- TRAINOR [2021] WASC 40
CORAM:   MASTER SANDERSON
HEARD:   15 DECEMBER 2020
DELIVERED          :   18 FEBRUARY 2021
PUBLISHED           :   18 FEBRUARY 2021
FILE NO/S:   CIV 1439 of 2020
BETWEEN:   DANIEL GERARD TRAINOR
Plaintiff
AND
JOSEPH BERNARD TRAINOR
Defendant

Catchwords:

Property law - Application for sale of property to person holding a half interest - Principle to be applied

Legislation:

Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application granted

Category: A

Representation:

Counsel:

Plaintiff	:	E Hensler
Defendant	:	M P Bruce

Solicitors:

Plaintiff	:	Billington Legal
Defendant	:	Kitto & Kitto

Case(s) referred to in decision(s):

Hargreaves v Fleming (1975) 1 NZLR 209
Martin‑Smith v Woodhead [1990] WAR 62
Nullagine Investments Pty Ltd v The Western Australian Club Incorporated (1993) 177 CLR 635
Orrman v Orrman [No 2] [2008] WASC 17
Pitt v Jones (1880) 5 App Cas 651
The Western Australia Club Incorporated v Nullagine Investments Pty Ltd (1992) 6 WAR 441

MASTER SANDERSON:

Section 126(1) of the Property Law Act 1969 (WA) is an important provision. It allows for the separation of the interests of parties who jointly own property. The section is in the following terms:
126. In action for partition Court may direct land to be sold
(1)Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
A number of points can be made about this section. First, it is ultimately derived from the Partition Act 1878 (WA) which was in turn based upon the Partition Act 1968 (Imp). Section 126 was directly taken from, and in all material respects, is identical to s 140 of the Property Law Act 1952 (NZ). The section does not have a direct analogue in other Australian jurisdictions. Elsewhere the separation of interests is dealt with in an altogether different fashion.
Second, an action for sale in lieu of partition should be commenced by writ rather than by originating summons. This was the view taken by Kennedy J in Martin‑Smith v Woodhead [1990] WAR 62 [65]. His Honour pointed out where there was a disputed fact it was appropriate to commence proceedings by writ rather than by originating summons. That was the course taken in this case and there is then no question of procedural irregularity.
Third, the section does not embody a broad discretion in the court to grant or refuse an order for sale. In Martin‑Smith v Woodhead Kennedy J referred to the English Court of Appeal decision in Pitt v Jones (1880) 5 App Cas 651 and said:
Lord Watson accepted the view that…

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 Trainor v Trainor

Details

AGLC: Trainor v Trainor [2021] WASC 40
Case: [2021] WASC 40
Decision Date

CaseChat Overview and Summary

In this case, Daniel Gerard Trainor sought an order for the sale of six farming lots that he jointly owned with Joseph Bernard Trainor. The parties were tenants in common in equal shares. The case was heard in the Supreme Court of Western Australia in Chambers. The legal issues before the court were whether the court had the authority to grant an order for sale under section 126(1) of the Property Law Act 1969 (WA) and whether the plaintiff was entitled to summary judgment.
The court found that the plaintiff was entitled to summary judgment as there was no evidence put before the court that subdivision of each or any of these properties was possible so that an order for partition could be made. The court also found that the plaintiff had a half interest in the properties and was entitled to an order for sale under section 126(1). The court rejected the defendant's argument that the plaintiff did not have an equitable half interest in the properties and therefore had no right under s 126(1) to seek a sale. The court found that equity could not stand in the way of a statutory right. The court ordered that the matter be re-listed for a further hearing and that the parties be prepared to deal with the question of costs.

Orders