ARAVANIS & ANOR -v- TURNER [2025] WASC 231 (12 June 2025)

Materials relied upon in support of the Application

1. In support of the Application, the plaintiffs relied on an outline of submissions filed on 2 June 2025, and:

(a) an affidavit of service sworn by Fedel Conti, process server, on 2 September 2024 (Conti Affidavit) in relation to service of the writ;

(b) an affidavit of Ronil Prakash Roy sworn 24 January 2025 (Roy Affidavit); and

(c) an affidavit of Alex Manning sworn on 17 March 2025 (Manning Affidavit).

1. The following facts relevant to the relief sought in the statement of claim and the Application are derived from the Roy Affidavit, as summarised in the outline of submissions:
   1. On 24 September 2019, an order was made by the Federal Circuit Court of Australia that Mr Lee's estate be sequestrated under the Bankruptcy Act, and the plaintiffs were appointed as joint and several trustees in bankruptcy of Mr Lee's estate.[1]
   2. Prior to his bankruptcy, Mr Lee and the defendant were the registered proprietors of the Property as tenants in common in equal shares.[2]
   3. On 21 November 2023, on the plaintiffs' application to Landgate pursuant to s 234 of the Transfer of Land Act 1893 (WA), Mr Lee's half share in the Property was transferred to the plaintiffs.[3] Since that date, they have been the registered proprietors of the Property in respect of a half share, as tenants in common with the defendant.[4]
   4. The plaintiffs have made several attempts to engage with the defendant in order to realise Mr Lee's vested interest in the Property for the benefit of the creditors of his bankrupt estate, as deposed to in the Roy Affidavit.[5] This includes the plaintiffs giving the defendant (or a third party) the opportunity to purchase the plaintiffs' vested interest (half-share) in the Property, or to join with them in a sale of the Property.
   5. Neither of the plaintiffs, nor their lawyers, have received any response from the defendant.[6]
   6. The registered proprietors of the Property, being the plaintiffs and the defendant, have been unable to reach a consensus as to the sale of the Property.[7]
2. The plaintiffs do not believe that partition of the Property is practicable in the circumstances, it being a residential property resided in by Mr Lee and the defendant.[8] They seek an order for sale pursuant to s 126(1) of the Act in lieu of partition, so that they may realise their vested interest in the Property for the benefit of the creditors of Mr Lee's bankrupt estate.

Procedural requirements for default judgment - O 13 r 9 RSC

1. The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC. Order 13 r 9 RSC applies in respect of an application for sale pursuant to s 126(1) of the Act, it being a claim other than for the recovery of a debt, damages, detention of goods or possession of land.
2. The procedural requirements that must be satisfied for default judgment under O13 r 9 RSC were outlined by Lundberg J in David Alan Collison as administrator of the estate of Diane Carol Collinson v Collinson.[9] Relevantly:

(a) the proceeding must have been commenced by writ of summons;[10]

(b) service of the writ on the defendant must be verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC;[11]

(c) no appearance has been filed by the defendant within the time prescribed for appearing;[12]

(d) if the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant;[13] and

(e) the plaintiff must produce a certificate issued by the proper officer on the day of the hearing stating that no appearance has been entered by the defendant, as required by O 13 r 9(2)(b) RSC.

1. Once those procedural requirements are satisfied, the court may consider the exercise of its discretion and whether to grant default judgment for the relief sought.

1. I am satisfied that the procedural requirements for judgment in default of appearance under O 13 r 9 RSC have been complied with:

(a) the proceedings were commenced by writ, indorsed with a statement of claim;

(b) the writ was personally served on the defendant on 29 August 2024, and service endorsed on the writ, as verified by the Conti Affidavit;[14]

(c) no appearance has been filed by the defendant within the time prescribed for appearing;[15] and

(d) the plaintiffs have tendered a certificate issued by the proper officer at the hearing today, as required under O 13 r 9(2)(b), certifying that no appearance has been entered by the defendant.[16]

1. Mr Manning deposes in the Manning Affidavit to attempts made to effect personal service of the Application and the Roy Affidavit (Application Documents) on the defendant.[17]
2. As the Application is for judgment in default of appearance and the relief sought does not differ from that in the statement of claim indorsed on the writ, which has been served on the defendant, service of the Application Documents on the defendant is not required. However, Mr Manning deposes to attempts made to contact the defendant to bring the Application to her attention and to effecting service of the Application Documents on the defendant by post to the Property address on 5 March 2025.[18]

1. Section 126(1) of the Act provides that, where a party or parties have a half interest (or more), individually or collectively, in the land to which an action relates, they may seek an order of the court directing a sale of the land and a distribution of the proceeds of sale, instead of a division of the land between the interested parties.
2. The provision does not embody a broad discretion to grant or refuse an order for sale. It provides that, if the applicant has a half interest (or upwards) in the land to which the action relates, and that party requests the court to direct a sale in lieu of partition, the court shall make such an order, unless it sees good reason to the contrary.[19]
3. Where an order for sale is made by the court directing that land be sold, O 53 r 3(1) RSC provides that the court may appoint a party or some other person to have conduct of the sale and permit that party to sell the land in such a manner as they see fit. Order 53 r 4(1) RSC empowers the court to give directions, as it thinks fit, for the purpose of effecting the sale.
4. Order 53 r 4(1) RSC provides:
   1. Directions

(1) The Court may either on the making of the order for sale, or on a subsequent application give such further directions as it thinks fit for the purpose of effecting the sale, including directions -

(a) appointing the party or person who is to have the conduct of the sale;

(b) fixing the manner of sale, that is to say, whether the sale is to be by contract conditional on the approval of the Court, by private treaty, by public auction, by tender, or by some other manner;

(c) fixing a reserve or minimum price;

(d) requiring payment of the purchase money into court or to trustees or other persons;

(e) for settling the particulars and conditions of sale;

(f) for obtaining evidence of value;

(g) fixing the remuneration to be allowed to any auctioneer, real estate agent, or other person.

1. The language of O 53 r 4(1) is such as to give the court an unfettered discretion as to the directions it may give and the terms of the orders it may make upon ordering a sale of land, including pursuant to s 126(1) of the Act.

1. The plaintiffs submit that there is no good reason why the court should not exercise its discretion and make orders in terms of the Application.
2. The orders sought in the Application are in the same terms as the relief sought in the statement of claim indorsed on the writ and provide, in effect, that:

(a) the Property be sold on the basis of unencumbered vacant possession;

(b) the plaintiffs have conduct of the sale;

(c) the sale be conducted in an orderly manner including the engagement of an agent who will recommend a reserve price and market the Property for sale;

(d) the defendant be given written notice of the reserve price, and have liberty to apply;

(e) the defendant have liberty to make an offer or bid at auction to purchase the Property and, if successful, will not be required to pay a deposit, and their interest (less any fees and expenses associated with the sale) will be deemed to have been paid on account of the purchase price;

(f) the defendant must cooperate with the agent in the sale process, including making the dwelling located on the Property available for inspection on reasonable notice, and provide vacant possession of the Property;

(g) if no acceptable offers are received within three months of the agent being appointed, there is provision for the Property to be marketed and offered for sale by public auction; and

(h) the net proceeds of sale, after payment of amounts due to any encumbrancer according to their priorities and of all proper costs, charges and expenses of the sale, be paid to the plaintiffs and to the defendant in equal shares.

1. The plaintiffs seek that the court exercise its discretion and make the orders sought in the Application. The effect of the orders sought is that the Property will be sold in an orderly and ordinary manner, and the net proceeds of sale, after payment of the mortgage and costs and expenses of the sale, be paid equally to the plaintiffs and the defendant.

1. I am satisfied that the plaintiffs, being tenants in common of one half‑share of the Property, have standing to bring this action under s 126(1) of the Act.
2. I must make an order for sale of the Property, unless there is good reason to order partition.
3. There is no evidence before me to suggest that the Property can be partitioned or that there is any good reason why it should be, and why I should not direct that it be sold.
4. The plaintiffs' attempts to engage with the defendant in relation to the Property have gone unanswered. The defendant has been served with the writ indorsed with the statement of claim seeking orders for sale of the Property. The defendant has not entered an appearance or sought to be heard, despite notice of the Application having been served on her by post. She is on notice of the proceedings and the relief sought and has chosen not to participate or contest the plaintiffs' claim.
5. In the circumstances, I was satisfied on the evidence before me, as outlined, that it is appropriate to order that judgment be entered against the defendant in default of appearance and to make an order pursuant to s 126(1) of the Act directing that the Property be sold, and that the plaintiffs have conduct of the sale.
6. After considering the plaintiffs' proposed orders, I was satisfied that orders should be made in relation to the appointment of a real estate agent, as to the method of sale and other orders to give effect to the sale and distribution of the proceeds of sale as proposed but with some modifications and additions. A copy of the orders made are attached to these reasons.
7. The orders made provide for a copy of the orders to be served on the defendant. In view of the difficulties the plaintiffs encountered in attempting to effect personal service of the Application Documents on the defendant, as deposed to in the Manning Affidavit, I am satisfied that service may be effected by posting a copy of the orders to the Property address by express post and by a copy of the orders being sent to the defendant by text message to the number deposed to in the Manning Affidavit.[20] Service by those means is likely, in my view, to bring the orders made to the attention of the defendant.
8. Notice is also to be given to the defendant, which forms part of the orders, of her right to apply under O 13 r 14 RSC for an order setting aside or varying the judgment, and for an order suspending the enforcement of all or any part of the judgment under s 15 of the Civil Judgments Enforcement Act 2004 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Roy Affidavit [4], [5]; 'RR-1', 'RR-2'.

[3] Roy Affidavit [6] - [8]; 'RR-3'.

[4] Roy Affidavit [9] - [10]; 'RR-4'.

[5] Roy Affidavit [11] - [18]; 'RR-5', 'RR-6', 'RR-7', 'RR-8'.

[9] David Alan Collison as administrator of the estate of Diane Carol Collinson v Collinson [2024] WASC 87 [12] - [17], [19] - [21].

[17] Manning Affidavit [12] - [15]; 'AM-2'.

[18] Manning Affidavit [16] - [18]; 'AM-3', 'AM-4', 'AM-5' [23], [24].

[19] See Agostina Teresa Raphael as executor of the will of Tonino Luciano Randazzo v Randazzo [2023] WASC 312 [70] (Seaward J), referring to Trainor v Trainor [2021] WASC 40 [4] - [5]; Bombara v Bombara [2010] WASC 314 [79] - [81].