JARVIS -v- JARVIS [2025] WASC 271 (4 July 2025)

1. The plaintiff also claims ancillary orders relating to the conduct of the sale of the land and his costs of the action and of the application to be deducted from the defendant's share of the proceeds of sale.
2. By notice of motion filed on 21 January 2025, the plaintiff applies for judgment in default of appearance against the defendant pursuant to O 13 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC).
3. The land, the subject of the plaintiff's application, is a property located at 144 Currie Street, Warnbro, Western Australia, more particularly described as Lot 427 on Plan 10646, being the whole of the property in Certificate of Title Volume 1366 Folio 403 (Land).
4. A copy of the Certificate of Title for the Land is attached to the affidavit of Paul John Dorosz Summers sworn on 20 January 2025 as attachment 'A'.
5. The plaintiff and the defendant are the registered proprietors of the Land as joint tenants. A mortgage in favour of Australia and New Zealand Bank is registered against the Land as security for a home loan in the joint names of the plaintiff and defendant. The mortgagor is on notice of the application.
6. The plaintiff claims payment from the defendant to equalise the parties' respective financial contributions to the costs associated with the mortgage on the Land and accrued interest on the associated home loan, and relating to ownership and occupation of the Land, pursuant to an oral agreement alleged to have been entered into between the parties.[1] The amount claimed has been amended in an amended statement of claim filed on 7 March 2025 to $67,012.53. The reasons for the reduction of the amount claimed are evident from the amendments to the statement of claim.[2]
7. The plaintiff alleges that the defendant is in breach of the oral agreement pleaded, as he has made less net contributions to the home loan and accrued interest than the plaintiff,[3] and has made no contributions to the home loan since about 11 October 2023. The plaintiff also claims that the defendant is in breach because he has made less contributions than the plaintiff to the occupation costs,[4] and has not contributed to other ownership and occupation costs since 24 January 2023, as pleaded.
8. By letter dated 18 November 2024, the plaintiff demanded payment from the defendant of the original amount claimed of $130,235.83 within 21 days. Despite demand, and in breach of the alleged oral agreement, the defendant has failed to pay the plaintiff the amount demanded or any sum.
9. The plaintiff also seeks an order that the Land be sold pursuant to s 126(1) of the Act.

Documents relied upon in support of the application

1. In support of his application for judgment against the defendant in default of appearance, the plaintiff relies upon:

(a) affidavits of Paul John Dorosz Summers sworn on 20 January 2025 and 7 March 2025;

(b) an affidavit sworn by the plaintiff, Stephen Jarvis, on 7 March 2025;

(c) an affidavit of service sworn by Graham Robert Coates on 20 December 2024; and

(d) two affidavits of service sworn by Kylie Anne Brown on 13 and 18 March 2025.

1. The plaintiff also relies on an outline of submissions filed in support of the motion for default judgment on 7 March 2025.

Procedural requirements for judgment in default of appearance

1. The procedural requirements for judgment to be entered in default of appearance are set out in O 13 RSC and were considered by Lundberg J in David Alan Collison as administrator of the estate of Diane Carol Collison v Collison,[5] to which I refer and greatly adopt without repeating in detail.
2. Order 13 r 9 RSC applies where, as in this case, a plaintiff's claim is other than for the recovery of a debt, damages, detention of goods or possession of land.
3. The procedural requirements that must be satisfied for default judgment under O 13 r 9 RSC are:
   1. The proceeding must have been commenced by writ of summons.[6]
   2. 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.[7]
   3. No appearance has been filed by the defendant within the time prescribed for appearing.[8]
   4. 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.[9]
   5. 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.
4. Once the procedural requirements are satisfied, the court may consider the exercise of any discretion to grant default judgment for the relief sought.

Compliance with procedural requirements under O 13 r 9 RSC

1. I am satisfied that the procedural requirements under O 13 r 9 RSC have been complied with.
2. In his affidavit sworn on 20 December 2024, Mr Coates verifies service of the writ indorsed with the statement of claim on the defendant, Christopher Jack Jarvis, in the circumstances he deposes to. I am satisfied that the writ indorsed with the statement of claim was brought to the attention of the defendant, and having refused to accept it, it was left secured to the security screen of the front door, after the defendant, Christopher Jarvis, had walked away and closed the door without accepting the documents in his hands.
3. I am satisfied that service of the writ and the statement of claim on the defendant has been verified by affidavit, together with indorsement of service of the writ in accordance with O 9 r 1(4) RSC.
4. An amended statement of claim was filed on 7 March 2025 with minor amendments to the particulars to paragraph 17, amending the amount claimed in relation to the monetary claim for breach of the alleged oral agreement from $130,235.83 to $67,012.53, plus a further amount of about $221.26 per week in respect of the home loan and accrued interest, and a monthly sum required to be paid to CGU Insurance to maintain the home and contents insurance for the Land. Although the amount of the claim has been amended, it is for a reduced amount.
5. I am satisfied the notice of motion, the affidavits, the amended statement of claim, the minute of proposed orders, the plaintiff's outline of submissions and notice of today's hearing have also been served on the defendant.[10]
6. Further, counsel for the plaintiff tendered a certificate signed by the Proper Officer, as required under O 13 r 9(2)(b) RSC, certifying that no appearance had been entered by the defendant.[11]

1. As stated, and as set out in the writ and statement of claim, as amended, and in the outline of submissions filed in support of the application, the plaintiff claims from the defendant what are referred to as the equalisation payments for breach of the oral agreement. The liquidated sum sought includes further payments that have accrued and, as at 5 March 2025, amount to $70,819.41.
2. By failing to enter an appearance, the oral agreement as pleaded and the other allegations of fact in relation to that claim are taken to have been admitted by the defendant.[12]

Applicable principles s 126(1) of the Act

1. Section 126(1) of the Act provides:

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.

1. Section 126(1) provides an alternative to partition of land. As the words of s 126(1) provide, where a party or parties have a half interest (or more), individually or collectively, in the land to which the action relates, they may seek an order of the court directing a sale of the land.[13]
2. The purpose of s 126(1) and of the legislation preceding it is to provide a remedy for a joint tenant (or tenant in common) who, in the event of a dispute with another co-tenant, may otherwise be without an adequate remedy to protect his share or interest in the property.[14]
3. As observed by Master Sanderson in Trainor v Trainor,[15] s 126(1) does not embody a broad discretion on the court to grant or refuse an order for sale. What the section anticipates is an order for sale or an order for partition of the Land. There is no other alternative available. Unless the court sees good reason to the contrary, it shall direct a sale.[16]
4. Order 53 r 3(1) RSC provides that where an order is made directing that land be sold, 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 manner as they think fit. Order 53 r 4(1) RSC empowers the court to give directions, as it thinks fit, for the purpose of effecting the sale.
5. 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.

Determination as to orders for sale pursuant to s 126(1) of the Act

1. I have considered the relevant principles that I have referred to in my determination of the application. The copy of the Certificate of Title for the Land confirms that the plaintiff and the defendant own the Land as joint tenants.
2. I am satisfied on the evidence before me that the plaintiff has standing to bring this action under s 126(1) of the Act, having at least a half share in the Land.
3. I must make an order for sale of the Land unless there is a good reason to order partition.
4. There is no evidence before me to suggest there is any good reason why the Land should be partitioned, and I should not direct that it be sold.
5. I am satisfied that it is appropriate in the circumstances of this case, as verified in the affidavits in support and outlined in the plaintiff's submissions, that judgment should be entered for the plaintiff against the defendant in default of appearance pursuant to O 13 r 9(1) RSC.

1. Judgment will be entered against the defendant in favour of the plaintiff in the amount of $70,819.41 and an order will be made pursuant to s 126(1) of the Property Law Act 1969 (WA) that the Land be sold free from encumbrances and with vacant possession.
2. I am satisfied that it is also appropriate to make the ancillary orders that the defendant deliver vacant possession of the Land to the plaintiff within 21 days of the date of service of the orders on the defendant, that the plaintiff have conduct of the sale of the Land and that the sale be conducted in accordance with the orders and funds disbursed as provided in the amended minute of proposed orders.
3. In the circumstances deposed to and outlined in the submissions in support of the application, I am satisfied it is appropriate that $60,000 from the amount to be paid to the defendant following the sale of the Land be paid into court pending further order and the parties should have liberty to apply in that respect.
4. It is also appropriate, in the circumstances, that the defendant pay the plaintiff's costs of the action on a party and party basis including the costs of the application for judgment in default of appearance, with such costs to be taxed if not agreed and paid from the defendant's share of the sale proceeds held by the court pursuant to the orders to be made.
5. The defendant has been served with the proceedings and with the application. He has not entered an appearance and for whatever reason has chosen not to take part. The plaintiff has been put to the cost and associated expense of bringing the application, and costs should follow the event, the plaintiff is entitled to recover those costs, to be taxed if not agreed. I will hear from counsel for the plaintiff as to the final form of the orders to be made.

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

[1] Amended statement of claim [3] - [17].

[2] Plaintiff's submissions filed on 17 March 2025 [9] - [16].

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

[10] Affidavits of service of Ms Kylie Ann Brown sworn on 13 March 2025 and 18 March 2025.

[12] See City of Stirling v Dueschen [2011] WASC 126 [48] (Kenneth Martin J referring to Faithfull v Woodley [1889] UKLawRpCh 192; (1890) 43 Ch D 287, 289).

[13] See Bombara v Bombara [2010] WASC 314 [79] (Allanson J).

[14] Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635, 650 (Brennan J), 656 ‑ 657 (Deane, Dawson & Gaudron JJ).

[15] Trainor v Trainor [2021] WASC 40 [4] ‑ [6].

[16] Bombara v Bombara [79], referring to Bray v Bray [1926] HCA 40; (1926) 38 CLR 542, 545 (Knox CJ); Martin-Smith v Woodhead [1990] WAR 62, 69 ‑ 70 (Kennedy J).