1. Mr Panna's first point is accepted. The Tribunal (like the Supreme Court) is a creature of statute. However, unlike the Supreme Court, it has no inherent or equitable jurisdiction. If authority is required for this proposition see the observations of Judge Bowman in State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre) [2006] VCAT 685 (21 April 2006) at para [23] and McLeod v Marina Operations Aust Pty Ltd (Civil Claims) (McLeod) [2006] VCAT 2537 (12 December 2006) at para [34].
2. Mr Panna referred to both of these cases and drew particular attention to Judge Bowman's statement in McLeod that the Tribunal 'possesses no equitable jurisdiction'. That statement is accepted. However, it was made in the context of emphasising that the Tribunal possesses no jurisdiction of any kind beyond that which is found in its own Act and the enabling enactments.
3. To the extent that the Tribunal has what may look like equitable powers, they come from statute. For instance, it may grant the remedies of injunction and declaration: see ss 123 and 124 respectively of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It may also order specific performance of a contract: s 108 Fair Trading Act 1999 (Vic).
4. In order to decide the application to dismiss, it is not relevant or appropriate to decide the second point, namely, whether there was in fact an agreement, understanding or intention that Mr Garnett receive a proprietary (presumably equitable) interest in the property. That is an issue for determination at the hearing, should the application for dismissal not succeed.

1. As to the third point, it is said that under s 225 of the Act only a 'coowner' of land or goods may apply to the Tribunal for orders under Division 2 of Part IV (relevantly, for the sale and division of sale proceeds of land). This is correct, as s 225 makes clear.
2. Sub-s 225(1) provides:

A co-owner of land or goods may apply to the VCAT for an order or orders under this Division to be made in respect of that land or those goods.

1. See also Atanas Krsteski and Polixent Krsteski v Sussan Spasia Jovanoski (as administratrix of the will and estate of Trajce Jovanoski) [2011] VSC 166 (29 April 2011) (Krsteski) per Macaulay J at [40], accepting this proposition.
2. An application under s 225 may request (relevantly) the sale of the land and the division of the proceeds among the co-owners: sub-s 225(2).

1. On the fourth point, does the definition of 'co-owner' in s 222 of the Act include persons who have or may have an equitable interest in the land as a joint tenant or a tenant in common? Is ownership as a joint tenant or a tenant in common within that definition confined to ownership of 'a presently existing legal estate'?

1. Section 222 defines 'co-owner' and other key terms for the purposes of Part IV of the Act (Part IV contains ss 221 to 234I inclusive). Relevant for present purposes are the definitions of 'co-owner' and 'land', these terms being specifically referred to in ss 225 and s 228. Section 228 gives the Tribunal power to make the relevant orders. Under sub-s 228(1), 'in any proceeding under this Division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land...occurs'. Without limiting the Tribunal's powers, it may order (relevantly here) 'the sale of the land... and the division of the proceeds of sale among the co-owners': sub-s 228(2)(a).
2. 'Co-owner' is defined in s 222 as meaning:

...a person who has an interest in land or goods with one or more other persons as -

1. 'Land' in turn is defined in s 222 as having 'the same meaning as it has in the Interpretation of Legislation Act 1984' (ILA).
2. The definition of 'land' in the ILA (s 38) provides:

land includes buildings and other structures permanently affixed to land, land covered with water, and any estate, interest, easement, servitude, privilege or right in or over land;

1. Mr Duggan on behalf of Mr Garnett relied on this definition and emphasised the presence of the word 'any' preceding (relevantly) the words 'estate' and 'interest' in 'land'. He stated that '"any" means "any"' and does not discriminate between legal and equitable estates and interests. In his submission, if Parliament had intended to exclude equitable estates and interests it could have done so but it had not. This submission is accepted.
2. Even without reaching the stage of considering the definition of 'land', the definition of 'co-owner' on its face refers to a person who has an 'interest' in land (or goods) as a joint tenant or a tenant in common. The ordinary meaning of this term includes equitable interests as well as legal.
3. As a matter of statutory construction, the definitions of 'co-owner' and 'land' in s 222 of the Act have the effect that a person claiming an equitable interest in land may apply to the Tribunal under s 225. There is no restriction in the relevant provisions requiring that the applicant under s 225 be or claim to be a legal joint tenant or a tenant in common. In fact, the definitions on an ordinary reading clearly encompass equitable interests as well as legal. [For land registered under the Transfer of Land Act 1958 (Vic) (TLA), this means that the applicant need not be registered as a co-owner on the certificate of title.]
4. In short, the Tribunal has jurisdiction under Part IV to make orders with respect to equitable as well as legal co-owners because the Act has given it that jurisdiction.
5. The definition of 'property' in s 222 is also broad, meaning 'real and personal property, including any estate or interest in real or personal property': para (a). [In Part IV, 'property' is only referred to in ss 224 and 227].
6. It follows that a person who claims an equitable interest as a co-owner in land by (say) a constructive trust, is able to make an application under s 225. If the Tribunal finds that person to be a co-owner in equity, then it has jurisdiction to make orders under s 228. Similarly, the Tribunal has jurisdiction to make such orders where the applicant is a registered co-owner but not all other persons found to be co-owners are registered as such.

1. It is clear (and Mr Panna conceded) that a person may be a co-owner in equity. In Stassinopoulos v Stassinopoulos [2011] VSC 647 (12 December 2011) (Stassinopoulos), the Supreme Court (per Vickery J) recently affirmed this. Mr Panna was part of the legal team representing the plaintiffs in that case. Two brothers had purchased a property for business purposes. Pursuant to the deeming provision in sub-s 33(4) of the TLA they were registered as joint proprietors (i.e. joint tenants): para [2].
2. However, Vickery J held that sub-s 33(4) did not preclude the operation of equity and 'it follows that, irrespective of the position on the certificate of title, in certain circumstances, equity may intervene to impose a tenancy in common': para [20] applying Sacks v Klein [2011] VSC 451, [25] per Hargrave J. Vickery J found that in equity the circumstances indicated that the two brothers did not intend to hold the property as joint tenants and the equitable presumption of a tenancy in common arose. [This was consistent with the operation of the equitable maxim that the right of survivorship has no place among merchants: para [31]]. The presumption was not rebutted by evidence to the contrary: para [50].
3. As a result, the surviving brother held 'a moiety or undivided equal share in the...property on trust for the Estate of the' other brother who had died and the surviving brother was 'not entitled to be registered as sole proprietor of the...property...': para [61].
4. The further hearing of the claim of the Plaintiffs (the deceased brother's relatives) for an order that the property be sold and the net proceeds of sale be divided into two equal shares with one share distributed to the deceased's estate and paid to the plaintiff, was adjourned sine die: para [61].
5. It was contemplated by this order for adjournment that the Supreme Court has jurisdiction to order the sale and division of sale proceeds on the application of an equitable co-owner. This is clearly the case, in accordance with s 234C of the Act.

1. Subject to s 234C, the Supreme Court and the County Court do not have jurisdiction to hear an application under Part IV of the Act: sub-s 234C(1). Under sub-s 234C(2) they have jurisdiction to hear an application under Part IV if the matter the subject of the application relates to certain specified proceedings (including proceedings under the Partnership Act 1958 (Vic)). The Tribunal does not have jurisdiction to hear applications of the kind referred to in sub-s 234C(2).
2. The Supreme Court and County Court also have jurisdiction to hear applications under Part IV in proceedings commenced in their court where the issue of co-ownership of land and goods arises in the course of that proceeding, or in the court's opinion special circumstances exist justifying the court hearing the application: sub-s 234C(4).
3. For those purposes, special circumstances means circumstances in which the matter which is the subject of the application is complex, or 'the matter which is the subject of the application, or a substantial part of that matter, does not fall within the jurisdiction of' the Tribunal: sub-s 234C(5). Subsection 234C(5) cannot be read as negating the clear intention in the broad definitions of 'co-owner' and 'land' in s 222, that the Tribunal has jurisdiction to hear applications under Part IV by persons claiming to be co-owners in equity.
4. The report of Stassinopoulos indicates that the proceeding in that case may have been brought (at least partly, 'in the alternative') under the Partnership Act 1958 (Vic). If so, the Supreme Court would have had jurisdiction to hear an application in that proceeding for sale and division of proceeds under Part IV of the Act. By virtue of sub-s 234C(3) the Tribunal would not have been able to hear that application.
5. Part IV of the Act applies to all land in Victoria: s 221. A plain reading of s 234C reveals that (as a general rule) Parliament has decided to give the jurisdiction to hear and determine applications under Part IV chiefly to the Tribunal. Subsection 234C(1) indicates this in providing that 'subject to s 234C, the Supreme Court and the County Court do not have jurisdiction to hear an application under Part IV of the Act'. The exceptions to this are set out in sub-ss 234C (2) to (5) inclusive. As required by s 85 of the Constitution Act 1975 (Vic), in s 234G Parliament asserts its intention that s 234C limit the jurisdiction of the Supreme Court.
6. Consistently with these provisions, the Explanatory Memorandum to the Property (Co-ownership) Act 2005 (Vic), which inserted the current Part IV into the Act, indicates one of its purposes as being (in clause 1) to:

provide for the transfer of jurisdiction for co-ownership disputes from the Supreme and County Courts to the...[Tribunal].

1. The then Attorney-General reiterated that purpose in his Second Reading speech for that Act: Legislative Assembly, 14 September 2005, page 879. Some emphasis was placed in that speech on the effect of ss 234C and 234G in limiting the jurisdiction of the Supreme Court 'to ensure that these disputes can be dealt with in a more accessible and affordable forum for dispute resolution': page 880.
2. In light of s 234C and the intention that the Tribunal have the chief jurisdiction in relation to applications under Part IV, it would seem strange if it were limited only to exercising this jurisdiction in relation to persons who are legal co-owners of land. If this were so, in hearing applications under Part IV, the Supreme Court would be similarly limited to only being able to make orders for sale and division of proceeds etc, in relation to legal co-owners of land. This is because the Supreme Court's powers to make such orders come from Part IV of the Act and are not inherent. This conclusion is not changed by s 234D of the Act, which provides:

Without limiting any powers of a court to make any order, in any proceeding in relation to the co-ownership of land or goods, a court may make any order which VCAT could make under this Part.

1. Section 234D makes it clear that the court obtains its powers to make orders in relation to (for example) sale and division of sale proceeds, from Part IV and not from its inherent jurisdiction. In providing this, s 234D expressly does not limit any of the court's other powers.

1. Under ss 226 and 234A, in addition to any other parties, all co-owners of the land or goods to which the proceeding relates are parties to a proceeding in the Tribunal under Division 2 or Division 3 (respectively) of Part IV. This provision does not affect the conclusions above. Co-owners may be co-owners in law or in equity. Co-owners in law will be registered on the title (for land registered under the TLA) and so easily identifiable for the purposes of s 234A. Co-owners in equity, such as persons who claim an equitable interest in land by virtue of a constructive trust, will usually be identifiable by either being the applicant, or joined as a respondent. Even where they are not a party to the proceeding, in most cases they should become aware of the application simply by virtue of having a genuine claim to an equitable interest in the land.
2. However, it should be noted that in practice a person who claims to be a co-owner of land in equity by virtue of (say) a resulting or constructive trust, may not in fact be treated as though they are a party by virtue of s 226 or s 234A as the case may be. Macaulay J assumed as much in Krsteski (discussed below) at para [43] when he observed that 'partition may seem an unlikely result...where the alleged beneficial owner is also the other co-owner; but such unlikelihood does not pertain where the relevant beneficial owner is not the other co-owner'.
3. Here, his Honour may be referring to where a beneficial co-owner is not listed in the Tribunal documents as a party to the proceeding.
4. In concluding that the definition of 'co-owner' in s 222 encompasses co-owners in equity as well as in law, consideration has been given to the definitions in s 222 and the context of Part IV, including s 234C. The Act as a whole does not suggest a different conclusion. Section 28A (inserted in 1998) should be noted. It appears in Division 1 of Part II of the Act. Part II is headed 'The General Law of Property and Conveyancing' and Division 1 is headed 'General Principles'. Section 28A provides:

(1) A co-owner is liable, in respect of the receipt by him or her of more than his or her just or proportionate share according to his or her interest in the property, to account to any other co-owner of the property.

(2) In this section, co-owner means a joint tenant, whether at law or in equity, or a tenant in common, whether at law or in equity, of any property.

1. The specific reference in sub-s 28A(2), to co-owners at law or in equity contrasts with the absence of that specificity in the definition of 'co-owner' in s 222. Does this indicate an intention that the latter not encompass co-owners in equity? It is thought not. Part IV in fact refers to s 28A in ss 233 and 234.
2. Under s 233 in a proceeding under Division 2 of Part IV (headed ' Sale and division') the Tribunal may (amongst other things) order that one or more co-owners account to the other co-owners in accordance with s 28A. In a proceeding under Division 3 of Part IV (headed 'Accounting') a co-owner may apply to the Tribunal for an order under that Division to be made for an accounting in accordance with s 28A, whether or not an application is made under Division 2. The incorporation by reference of s 28A in these provisions, without expressly limiting its application to legal co-owners for the purposes of Part IV, supports the view that the definition of co-owner in s 222 is not so limited.
3. There was no need for the definition of 'co-owner' in s 222 to specify that it applies to co-owners in equity as well as in law. That definition refers to 'interest', which encompasses both legal and equitable co-ownership. However, sub-s 28A(1) also refers to 'interest' in 'property' and it was still thought necessary to include sub-s 28A(2). Nevertheless, it may be that sub-s 28A(2) was included to ensure that co-ownership may relate to 'any property', that being the main focus of the subsection. In that case, the references to 'at law' and 'in equity' may have been included as an abundance of caution.

1. As Mr Duggan noted, the Tribunal has already assumed jurisdiction to determine the claim of an equitable co-owner in exercising its powers under Part IV. In Dawson v Gallant Valley Pty Ltd [2008] 1183 (28 May 2008) (Dawson), the applicant claimed to be an equitable co-owner of land as the beneficiary of a constructive trust. Macnamara DP found that the Tribunal had jurisdiction to deal with the claim under Part IV: para [17]. He rejected the further submission that the Tribunal could not even determine whether a constructive trust existed in the first place such that, even if it were able to exercise its powers in relation to equitable co-owners, it could only do so for those holding 'admitted equitable interests': see para [18]. That is the argument Mr Panna puts in his fifth and sixth points.
2. Dawson raised essentially the same issues as in this case. In finding that the Tribunal had the requisite jurisdiction, Macnamara DP emphasised the history and purpose of Part IV (inserted into the Act in 2005). Those considerations remain relevant: see for instance paras [9], [17] and [18] of the decision. For the same reasons expressed in that case (including those considerations of history and purpose), Mr Panna's fourth, fifth and sixth points are not accepted.
3. As Macnamara DP noted in Dawson, when it was decided in 2008 there was no guidance from the Supreme Court in relation to the jurisdictional issues raised: para [15]. Since then, the Supreme Court (per Macaulay J) has decided Krsteski. In that case, Macaulay J considered an appeal by the Krsteskis from a decision of this Tribunal constituted by Macnamara DP to order a sale and division of sale proceeds of land.
4. Sussan Jovanoski (Sussan) had claimed that she (as administratrix) and the Krsteskis were co-owners of the land, each being registered (or in Sussan's case as administratrix, entitled to be registered) as proprietors of an undivided half-share in the land: para [2]. The Tribunal had dismissed a cross-claim by the Krsteskis, seeking an order that Sussan transfer her half interest to them on the basis that her parents (when alive) had held their half interest in the land on trust for the Krsteskis. As Macaulay J noted, 'it was the dismissal of the cross-claim that was pivotal to the making of all the orders, and it is the cross claim that is the real focus of the intended appeal in this court': para [3].
5. His Honour dismissed the Krsteskis' appeal from the Tribunal's decision to dismiss their cross claim and order the sale and division of proceeds. In doing so, his Honour observed at [20] :

...it was clear that the tribunal's primary task was to decide the question of whether or not the land was, from the beginning, held by the Jovanoskis on trust for the Krsteskis as they alleged. The Krsteskis advanced their case either on the basis of an express trust (proven by actual common intention) or resulting trust (presumed from the alleged fact that the Krsteskis paid the entire price for the purchase of the land).

1. It is clear from these observations that Macaulay J did not question that the Tribunal in exercising its powers under Part IV may decide whether a person has an equitable interest in land as the beneficiary of an express or resulting trust.
2. Ironically, the Krsteskis argued in the Supreme Court that the definition of 'co-owner' in s 222 excluded the owner of a legal interest only, such that if the Jovanoskis were found to have held their interest on trust for the Krsteskis, then the Jovanoskis were not co-owners of the land and could not (through their administratrix) apply for its sale. That is the opposite of the argument put for Mr Garnett in this case.
3. The argument was that in that event, the Jovanoskis would only hold a legal interest as registered proprietors, and no beneficial interest in the land. In rejecting that argument, Macaulay J commented in relation to the phrase 'interest in land' in the definition of 'co-owner': 'There is no warrant as a matter of textual analysis to limit "an interest in land" to mean only a beneficial interest in land. Such limitation, if intended, could readily have been imposed': para [42].
4. It is clear from this statement that in his Honour's view a person may be a co-owner of land and apply under Part IV, if he only holds a beneficial interest in the land without being registered as a legal co-owner. His Honour put this beyond doubt when he continued: 'In my view the jurisdiction of VCAT was engaged by proof that Sussan had an interest in land, legal or beneficial, with the Krsteskis either as joint tenant or tenant in common. So much has been admitted by the parties and is not in dispute': para [44].
5. Mr Panna referred to Kalotihos v Bulzomi [2007] VCAT 1734 (6 September 2007) (Kalotihos), a decision of the Tribunal constituted by Judge Harbison as Vice President. In that case, Judge Harbison decided that the Tribunal had no jurisdiction to consider an application under Part IV of the Act because the applicant (Mr Kalotihos) did not have an interest in land as required by the definition of 'co-owner'. Instead, he had 'a contractual right to purchase an interest in a parcel of land to be created upon the happening of the events provided for in...[a] Deed of Understanding, and upon creation of that parcel of land by registration of a subdivision': para [43].
6. Judge Harbison accepted that an option to purchase creates an equitable interest in land, but found that the land did not yet exist. Upon the occurrence of various events, 'the Applicant and the Respondent may some time in the future become registered as tenants in common or joint tenants of the Title to be created to the penthouse': para [34], emphasis added.
7. Although a building is encompassed by the definition of 'land' in s 222, it seems that the crucial point for Judge Harbison was that the separate certificate of title to the penthouse had not yet been created. Whether or not this is accepted, Kalotihos is clearly distinguishable on the facts from the present case.

1. Nothing in the analysis above detracts from the requirement in the definition of 'co-owner' that the person with an interest (legal or equitable) in (relevantly) land 'with one or more persons', must hold that interest as a joint tenant or a tenant in common. Mr Panna submitted that the definition of 'co-owner' cannot be read by the Tribunal as effectively allowing for the addition of two new paragraphs ((c) and (d)) capturing persons who have or claim equitable interests in the property. That is right. To do so would ignore the requirement in (a) and (b) that a person holding an equitable interest in land or goods must do so as a joint tenant or a tenant in common. Simply holding an equitable interest will not suffice to attract the jurisdiction.
2. The applicant here claims an equitable interest on the basis that the respondent 'holds a 10% share or interest in the property pursuant to a constructive or resulting trust' in his favour. The definition of 'co-owner' contemplates that a person may hold their interest as a co-owner with more than one other person. Such a 'co-owner' (more particularly, a tenant in common) may therefore hold less than a 50% interest. The applicant must prove that in fact he does hold an equitable interest in the land and that he has that interest as a joint tenant or tenant in common with the respondent. These will be questions for determination at the hearing.

1. For the reasons given, the Tribunal has jurisdiction to determine the applicant's application. Accordingly, the respondent's application for dismissal of the applicant's application, is dismissed.

1. We have heard no argument on costs and so we will reserve that question.