Van Der Wolff v Van Der Wolff - [2024] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VAN DER WOLFF & ORS v VAN DER WOLFF
[2024] SASC 80
Judgment of the Honourable Auxiliary Justice Dart
REAL PROPERTY - PARTITION OF LAND - PARTITION OR SALE IN PARTITION ACTIONS
Joint owners seek sale of real property - consideration of s 70 of the Law of Property Act 1936 - whether good reason to the contrary - no reasonable basis for the respondent to oppose order for sale.
Development Act 1993 (SA); Fire and Emergency Services Act 2005 (SA); Law of Property Act 1936 (SA) s 69, s 70, s 71; Planning, Development and Infrastructure Act 2016 (SA), referred to.
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; DKL v LYK [2019] SASC 100; Kasewieter v Galligan [2015] SASC 5; Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, considered.

VAN DER WOLFF & ORS v VAN DER WOLFF
[2024] SASC 80

The five litigants in this matter are brothers. They jointly own two titles of land at Old Mount Barker Road, Aldgate as tenants in common in equal shares. Four of the brothers wish to sell the land. One brother is opposed and thus this litigation was commenced. The facts and circumstances are such that it is appropriate to order the sale of the land.
Background
The larger portion of land is that contained in Certificate of Title Register Book Volume 6142 Folio 941. It fronts onto Old Mount Barker Road and is about five hectares in size. The other title is the land comprised and described in Certificate of Title Register Book Volume 6156 Folio 327. It is less than one hectare in size and is landlocked but contiguous with the larger block.
The two titles were previously owned by the mother of the litigants. The larger title was transferred to them as tenants in common in 2005 as part of the administration of their mother’s deceased estate. It appears that for some reason the smaller title was not transferred until 2014.
The respondent, who opposes sale, resides on the land and has done so for a very long time. He does not pay rent and there have been a few issues between the brothers along the way. They are not strictly relevant for present purposes but some should be mentioned.
In 2013 the respondent was back burning on the property and lost control of that process. A fire spread to adjoining properties causing significant damage. About 160 firefighters and 30 appliances were called to the fire to try and control it.
There was also a dispute with the Adelaide Hills Council. Apparently the respondent stored a lot of material on the land. The applicants would say it was junk. The respondent disagrees with that description. The Adelaide Hills Council served a Development Act 1993 (SA) notice on the parties on or about 30 April 2014. The notice alleged the land was being used for “a junkyard”…

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 Van Der Wolff v Van Der Wolff

Details

AGLC: Van Der Wolff v Van Der Wolff [2024] SASC 80
Case: [2024] SASC 80
Decision Date: 11 June 2024

CaseChat Overview and Summary

In the case of Van Der Wolff v Van Der Wolff, the court was tasked with resolving a dispute between five brothers who jointly own two titles of land in Aldgate. The brothers are tenants in common, holding equal shares in the properties, which consist of a larger five-hectare lot fronting Old Mount Barker Road and a smaller, landlocked one-hectare parcel. Four of the brothers sought to sell the land, while the fifth brother opposed the sale, leading to the current litigation. The primary legal issue was whether the court should order a sale of the jointly-owned properties or direct a partition of the land. This matter was governed by the Law of Property Act 1936 (SA), specifically sections 69, which empowers the court to order a partition or sale of the property if it deems it to be more beneficial for the parties involved.

The court considered various factors in reaching its decision. These included the nature of the properties, the number of interested parties, and the potential for friction and ongoing disputes between the co-owners. The court noted the significant history of disagreements among the brothers, including issues with the Adelaide Hills Council, disputes over the use of the land, and a previous fire incident. Additionally, the presence of a telecommunications tower on one of the titles, which generated rental income, was a point of contention. The court also highlighted the respondent's residence on the property without paying rent, and the recent notice from the Adelaide Hills Council regarding vegetation and fire risk. Given these circumstances, the court concluded that a sale of the properties would be more beneficial for the parties than a partition, as it would avoid further disputes and potential litigation.

In light of the considerations above, the court determined that ordering the sale of the jointly-owned properties was the most appropriate course of action. The court directed that the properties be sold and the proceeds distributed among the brothers according to their respective shares. This decision aimed to resolve the ongoing disputes and provide a definitive outcome for the co-owners. The court's ruling effectively facilitated the sale of the land, thereby addressing the primary objective of the applicants while mitigating the risk of future conflicts.

Orders

Orders of the court

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Background

Background to the litigation

The five litigants in this matter are brothers. They jointly own two titles of land at Old Mount Barker Road, Aldgate as tenants in common in equal shares. Four of the brothers wish to sell the land. One brother is opposed and thus this litigation was commenced. The facts and circumstances are such that it is appropriate to order the sale of the land.Background The larger portion of land is that contained in Certificate of Title Register Book Volume 6142 Folio 941. It fronts onto Old Mount Barker Road and is about five hectares in size. The other title is the land comprised and described in Certificate of Title Register Book Volume 6156 Folio 327. It is less than one hectare in size and is landlocked but contiguous with the larger block. The two titles were previously owned by the mother of the litigants. The larger title was transferred to them as tenants in common in 2005 as part of the administration of their mother’s deceased estate. It appears that for some reason the smaller title was not transferred until 2014. The respondent, who opposes sale, resides on the land and has done so for a very long time. He does not pay rent and there have been a few issues between the brothers along the way. They are not strictly relevant for present purposes but some should be mentioned. In 2013 the respondent was back burning on the property and lost control of that process. A fire spread to adjoining properties causing significant damage. About 160 firefighters and 30 appliances were called to the fire to try and control it. There was also a dispute with the Adelaide Hills Council. Apparently the respondent stored a lot of material on the land. The applicants would say it was junk. The respondent disagrees with that description. The Adelaide Hills Council served a Development Act 1993 (SA) notice on the parties on or about 30 April 2014. The notice alleged the land was being used for “a junkyard” and said there was no development approval to use the land for that purpose. The notice required the removal of property from the land. Considerable expense was incurred in complying with the notice and tidying up the property. On one of the titles there is located a telecommunications tower. A number of telecommunications companies pay rent for the use of that tower. The brothers fell into dispute about distribution of the rent. Proceedings were issued in the Magistrates Court in 2017 by the respondent. The dispute between the parties resolved and a deed was executed on 12 April 2019 which recorded the terms of settlement. These various issues have been the subject of ongoing friction between the brothers. As recently as 13 November 2023, the Adelaide Hills Council served a notice under the Fire and Emergency Services Act 2005. It required the parties to reduce vegetation and undergrowth on the property to minimise the fire risk. The legal issue This is an application under the Law of Property Act 1936 (SA). The first relevant provision is:69—Power to order partition or sale instead of partition (1) On any application for partition the court may order a partition of the said land or other property, and may give all necessary or proper consequential directions. (2) On any such application if it appears to the court that, by reason of the nature of the property, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the absence, dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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