Plaintiff v Defendant

2 In 1993, the plaintiff met, and became friends with, the wife of the defendant. In 1995, the plaintiff and the defendant jointly purchased the property. On settlement, they were registered as the proprietors as tenants in common in equal shares of an estate in fee simple in the property. The plaintiff lived with the defendant and his family at the property until October 2010, when the property was vacated by the plaintiff. Shortly afterwards, it was also vacated by the defendant and his family. Subsequently, the plaintiff rented the property to tenants, and received the rental paid by them.

3 In the proceeding in the Tribunal, the plaintiff, and the defendant by a cross-claim, each sought an order that the property be sold and that the proceeds of sale be divided. The issue before the Tribunal concerned what adjustment (if any) should be made to their respective interests in the property pursuant to s 233 of the Act.

4 By his decision, the Senior Member ordered, pursuant to s 233, that the respective rights of the plaintiff and the defendant in the property be adjusted, so that the interest of the plaintiff should be 16.55 per cent and the interest of the defendant should be 83.45 per cent. The Senior Member made consequential directions to give effect to that order. In addition, as sought by both parties, he made orders, pursuant to s 228 of the Act, for the sale of the property by public auction.

5 In his reasons for decision, the Senior Member noted that the approximate cost of purchasing the property, including expenses, was $115,000. Of that sum, the defendant provided $60,000 from his savings. The balance, which amounted to approximately $55,000, was borrowed from the Commonwealth Bank by the plaintiff and the defendant. It was intended that the plaintiff be solely responsible for repayment of the loan and interest. A bank account, for that purpose, was opened in the names of the plaintiff and the defendant, from which the mortgage instalments were to be deducted. Although the account was in both names, only the plaintiff operated the account, which she used as her everyday bank account.

6 The Senior Member found that although the plaintiff made a number of payments into the bank account, the bulk of the mortgage loan was repaid by the defendant from a redundancy payment that he had received. In particular, the defendant had made seven payments in relation to the mortgage, between 3 October 1995 and 29 October 1996, totalling $34,797.75. The Senior Member quantified the plaintiff's contribution to the repayment of the mortgage loan, by deducting the payments made by the defendant from the total amount paid to the bank, namely, $113,596.70. He thus concluded that, of the total sum of the purchase price and mortgage payments, the defendant had contributed $94,797.95, and the plaintiff had contributed $18,798.25. As a result, the Senior Member found that the plaintiff had contributed 16.55 per cent, and the defendant had contributed 83.45 per cent, to the "acquisition" of the property.

7 The Senior Member also found that the plaintiff had received the value of all of the rental paid by the tenant to the property, amounting to the sum of $21,827. He considered that, pursuant to s 233(1)(c) of the Act, he had power to make an adjustment of the parties' interest in the property, to take into account those payment. However, in the circumstances, he concluded that the better course to adopt was to order that the defendant's share of the rent, totalling $10,913.50, should be paid to him out of the plaintiff's share of the proceeds of the sale.

8 The Senior Member noted that, in addition to seeking an adjustment to the rights of the parties pursuant to s 233 of the Act, the defendant had also sought a declaration that the plaintiff's interest in the property was held on a "purchase price resulting trust" to the extent of the defendant's contribution to the property. The Senior Member rejected that claim by the defendant for two reasons. First, the Tribunal has no general equitable jurisdiction, and therefore it does not have power to make declarations as to the rights of individuals. Secondly, he concluded that it was the intention of the parties, when the property was purchased, that it would belong equally to the plaintiff and the defendant, and accordingly that express intention of the parties would rebut any presumption of a resulting trust in favour of the defendant.

9 The Senior Member concluded that the failure of the plaintiff to pay for her "share" of the purchase price and mortgage debt was an appropriate reason for adjusting the rights of the parties pursuant to s 233 of the Act, in accordance with the proportions of those sums contributed by the plaintiff and the defendant respectively.

10 The amended notice of appeal contains seven grounds of appeal. Those grounds are expressed in prolix and imprecise terms. Appropriately paraphrased, the grounds, relied on by the plaintiff, may be summarised as follows:

(1) The Tribunal found that it was the intention of the parties, when the property was purchased, that it belong equally to the plaintiff and the defendant. Pursuant to the principles relating to constructive trusts, the defendant was entitled to orders securing to him his additional financial contributions to the maintenance or acquisition of the property, before the balance of the proceeds of the property was divided equally between the plaintiff and the defendant, but the defendant was not entitled to orders that increased his interest in the property. Under s 233(1) of the Act, the Tribunal was empowered to make orders that gave effect to the rights and obligations of the parties under the general law of trusts, and accordingly it "should not" have made orders adjusting the parties' property rights in a manner that was contrary to their intentions at the time the property was purchased.

(2) The Tribunal erred in treating the mortgage payments made by the defendant as a contribution to the acquisition of the property.

(3) The Tribunal erred by failing to take into account the "overall pool of contributions" made by the parties after acquisition of the property, including bank interest, rates and the like. The plaintiff had made relatively substantial, but unquantifiable, contribution to those expenses. The Tribunal should have found there was no reliable evidence as to the quantum of the contributions made by the parties. Accordingly, the Tribunal reached a conclusion as to the parties' contributions that was not reasonably open on the evidence.

(4) The Tribunal, in adjusting the interests between the parties, failed to take into account that, at the time the defendant made the mortgage payments, the property was increasing in value.

(5) The Tribunal made an "implied finding of fact" that the defendant's payment of $34,797.95, in reduction of the mortgage, was "in the nature of a loan" to the plaintiff in respect of half of that amount. Pursuant to the principles of contract law, the defendant was entitled to orders that that loan be repaid to him. The Tribunal was empowered, under s 233(1)(a) of the Act, to order that the plaintiff repay the loan to the defendant from the plaintiff's share of the proceeds of the property. The Tribunal should have given effect to those rights and obligations of the parties under the "loan", and should not have adjusted the interests of the parties in a manner "at odds" with their contractual rights.

(6) The Tribunal failed to take into account that the first defendant had lived at the property with his wife and children, whereas the plaintiff had lived at the property without any relatives or invitees, and thus the defendant had derived a greater benefit from the property than the plaintiff.

(7) Section 233 of the Property Law Act did not commence operation until 1 July 2006. The plaintiff had acquired her 50 per cent interest in the property in June 1995, and the mortgage repayments by the defendant were made between October 1995 and October 1996. There was no indication in the Property (Co-Ownership) Act 2005 (Vic), which introduced s 233, that Parliament intended that that provision have retrospective effect.

11 The written submissions, filed on behalf of the plaintiff, contained five arguments encompassing those seven grounds of appeal. In oral submissions before me, Mr F Lim, who appeared on behalf of the plaintiff, reduced those submissions to three principal arguments.

12 First, Mr Lim contended that, in exercising its powers under s 233 of the Act, the Tribunal was not entitled to make orders contrary to the established legal and equitable interests of the parties in the property. Mr Lim pointed out that, in accordance with the principles relating to resulting and constructive trusts, the relevant intentions of the parties, as to the beneficial ownership of property, are determined at the time at which the property is purchased. The fact, that a mortgage debt, incurred in respect of the purchase of a property, was later repaid in differing portions by the co-owners of the property, is not relevant in determining the extent of the interest of the parties, although it may be relevant on an equitable accounting between them.[1] Mr Lim contended that, on its proper construction, s 233(2) of the Act did not empower the Tribunal to displace existing common law and equitable principles regulating the respective interests of co-owners of a property. In those circumstances, the Tribunal did not have power to adjust the interests of co-owners according to payments, later made by them, in respect of matters such as the maintenance of the property or the mortgage loan which financed the purchase of the property.

13 In the course of oral argument, I put to Mr Lim that that submission appeared to be inconsistent with the express terms of s 233(1)(c) and s 233(2) of the Act, which give the Tribunal the power to adjust a co-owner's interest in property by taking into account costs incurred and payments made by a co-owner in respect of the property subsequent to the acquisition of the property. In response, Mr Lim modified his submission, by contending that the Tribunal "should not" have exercised its powers under s 233(1)(c), so as to disturb the rights of the appellant according to legal and equitable principles. However, Mr Lim, when invited to do so, was unable to specify any particular error of law by the Tribunal in that respect. In particular, Mr Lim was unable to advance any argument as to why an order by the Tribunal, under s 233, adjusting the interests of co-owners would constitute an error of law, on the basis that, as a result of that exercise of power, the rights of the co-owners of a property in law and equity were adjusted.

14 The second principal submission by Mr Lim was based on the seventh ground of appeal. Mr Lim noted that the plaintiff and the defendant had acquired their interests in the property in 1995, and that the mortgage repayments were made by the defendant between October 1995 and October 1996. Section 233 of the Act was introduced by the Property (Co-Ownership) Act 2005 ("the 2005 Act), which did not commence operation until 1 July 2006. Mr Lim submitted that there was no indication, in the 2005 Act, that Parliament intended that it have retrospective effect. Before that Act came into effect, the rights and interests of the plaintiff and the defendant in the property had accrued. Mr Lim referred to the principle, described by Dixon CJ in Maxwell v Murphy,[2] that a statute changing the law would not, unless the intention appears with reasonable certainty in the amending statute, be understood as applying to facts or events that have already occurred, in such a way as to affect rights or liabilities, which the law had defined by reference to past events. Mr Lim submitted that there was no indication in the 2005 Act that it was intended to operate retrospectively, so as to affect pre-existing rights and interests of co-owners in property. He submitted that s 234I of the Act, which provided that the amending Act did not apply to proceedings which had already been commenced in the court, was concerned only with the disposition of existing litigation between joint owners of property. He submitted that that provision was not an expression of Parliament's intention that, apart from those cases, the 2005 Act should otherwise apply to permit adjustment of the rights and interests of joint owners of property which had already accrued before the commencement of that Act.

15 The third principal submission by Mr Lim incorporated the third, fourth and sixth grounds of appeal. In effect, Mr Lim submitted that the Senior Member had erred by failing to take into account a number of relevant factors. In particular, Mr Lim submitted that the Senior Member had failed to take into account the increase in value of the property between the time of its purchase in 1995 and the time of the proceeding. Mr Lim contended that it was not just and fair that the Tribunal adjust the interests in land based on the original cost of purchase of the property, rather than on its current market value. In addition, Mr Lim submitted that the Tribunal Member was obliged to, but did not, take into account that the defendant, his wife and his three children had lived at the property, and thus had derived a greater benefit from it compared with the plaintiff, who had lived there alone.

16 In response to the first submission by Mr Lim, Mr A Coote, who appeared on behalf of the defendant, submitted that the clear intention of the 2005 Act was that the Tribunal have power to adjust the interests of joint owners of property otherwise than in accordance with their established legal and equitable rights. He pointed out that, in its final report,[3] the Victorian Law Reform Commission, by its fifty second recommendation, proposed that the Tribunal have the power (inter alia) to direct an adjustment be made to a co-owner's interest to take account of amounts payable by co-owners to each other.

17 Mr Coote referred to s 228(1) of the Act, by which the Tribunal, in a proceeding under Division 4 of the Act, may make any order it thinks fit "... to ensure that a just and fair division or sale of land or goods occurs". He also pointed to s 233(1)(c) of the Act, which expressly provides to the Tribunal the power to adjust a co-owner's interest in land or goods, to take account of amounts payable by the co-owners to each other during the period of their joint ownership. Mr Coote noted that that power was conditioned upon s 233(2), which requires the Tribunal, in exercising such a power, to take into account matters including the payment by a co-owner of more than his or her proportionate share of (inter alia) mortgage repayments. In those circumstances, Mr Coote submitted that the Senior Member did not err in adjusting the rights of the parties, to the property, by reference to their respective contributions to repayment of the mortgage loan.

18 In response to Mr Lim's second submission, Mr Coote submitted that the application of the 2005 Act to jointly owned property, which had been purchased before the commencement of that Act, does not involve giving to the 2005 Act a retrospective effect. He submitted that the 2005 Act did not affect existing rights or equitable interests of co-owners in respect of their jointly owned property. Rather, he submitted that the 2005 Act created a right to an adjustment of the interests of the parties, such right accruing at the time when a party makes an application under Part 4 of the Act for division or sale of a property. Mr Coote submitted, in that respect, that the position of the parties was analogous to the position of the parties in Chang v Laidley Shire Council.[4] In addition, Mr Coote pointed out that the effect of Mr Lim's submission, if accepted, would be that the 2005 amending Act did not apply to any jointly owned property acquired before the commencement of that Act.

19 In response to Mr Lim's third submission, Mr Coote submitted that the plaintiff had failed to point to any material suggesting that any of the matters, now relied on, were proven in evidence before the Tribunal. Mr Coote further submitted that, if the Member had been required to take into account an increase in market value of the property, he would also have been required to take into account, on the other hand, the current real value of the funds contributed by the defendant, to the purchase of the property and to the repayment of the mortgage. Accordingly, Mr Coote submitted that the plaintiff had not established that the Senior Member had failed to take into account any relevant circumstance in reaching his decision.

20 In considering the submissions made on behalf of the plaintiff, it is important to bear in mind that the proceeding consists of an appeal to the court from a decision of the Tribunal. Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) entitles a party to a proceeding before the Tribunal to appeal, by leave, on a question of law from an order of the Tribunal. Such an appeal is confined to questions of law, and it is of substantially narrower ambit than an appeal from a decision of the County Court or of the trial division of the Supreme Court, to the Court of Appeal. Thus, in order to succeed, the plaintiff must demonstrate that the Senior Member made a relevant error of law in his decision.

21 For that reason, the first submission, relied on by Mr Lim, effectively resolved itself in the course of oral argument. That submission addressed the first ground of appeal, the relevant part of which alleged that the Tribunal "... ought to have given effect to the parties' rights and obligations in the property prevailing under the law of trusts, and should not have made orders that adjusted the parties' property rights in a manner at odds with their actual intention as to the ownership of the property both at the time of its acquisition and afterwards" (emphasis added). When I asked Mr Lim to identify a relevant legal error by the Senior Member in applying s 233(1)(c), so as to adjust the legal and equitable interests of the parties in the property, Mr Lim responded that he could not "think" of any legal error made by the Senior Member in that regard. That concession by Mr Lim, which was fatal to the first submission, was clearly correct.

22 Section 233 is in Part 4 of the Act, which is concerned with prescribing remedies in respect of applications, by a co-owner of property, for a sale or division of that property. Section 225(1) provides that a co-owner of land (or goods) may apply to the Tribunal for an order, or orders, in respect of that land (or those goods). Section 228(1) provides that, in such a proceeding, the Tribunal may make any order to ensure that "a just and fair sale or division of land or goods occurs". In that context, s 233 (so far as it is relevant) provides:

"(1) In any proceeding under this Division, VCAT may order -

(a) that compensation or reimbursement be paid or made by a co-owner to another co-owner or other co-owners;

(b) that one or more co-owners account to the other co-owners in accordance with section 28A;

(c) that an adjustment be made to a co-owner's interest in the land or goods to take account of the amounts payable by co-owners to each other during the period of the co-ownership.

(2) In determining whether to make an order under subsection (1), VCAT must take into account the following -

...

(c) the payment by a co-owner of more than that co-owner's proportionate share of rates (in the case of land), mortgage repayments, purchase money, instalments or other outgoings in respect of that land or goods for which all the co-owners are liable. ... ."

23 Pausing there, it is clear, from its express terms, that s 233 authorises the Tribunal, on an application under Part 4, to make an adjustment to a co-owner's existing interest in land or goods by taking account (inter alia) amounts paid, and costs incurred, by a co-owner in respect of the property which exceed that co-owner's proportionate share of those costs or payments. Such an adjustment must, necessarily, involve an alteration of the parties' rights and interests at common law and in equity. The issue is placed further beyond doubt by s 233(5), which provides that s 233 "... applies despite any law or rule to the contrary".

24 Thus, on its clear terms, s 233 authorised the Senior Member to make an adjustment to the respective interests of the plaintiff and the defendant to take into account (inter alia) the payment by the defendant of more than his proportionate share of the mortgage repayments in respect of the property.

25 In order to avoid such a conclusion, Mr Lim placed emphasis on the recommendations of the Victorian Law Reform Commission, and on the Second Reading Speech of the Attorney-General in respect of the 2005 Act. He submitted that neither the report of the Commission, nor the Speech of the Attorney-General, contained any reference to the creation of a power in the Tribunal to make orders the effect of which were to alter the legal and equitable interests of co-owners of property. That submission, however, overlooks recommendation number 52 by the Law Reform Commission, to which I have already referred. In addition, the Second Reading Speech of the Attorney-General was expressed in general terms, and clearly was not intended to constitute an exhaustive exegesis of the amending Act.

26 As I have already noted, Mr Lim was unable to identify any relevant error of law by the Senior Member in making orders, under s 233 of the Act, the effect of which was to alter or adjust the respective interests of the plaintiff and the defendant as co-owners of the property. It follows that the first ground of appeal must fail.

27 Before turning to the second submission made by Mr Lim, it is convenient also to deal, briefly, with the second ground of appeal. That ground was not the subject of any direct submission by Mr Lim, or in the plaintiff's written submissions. In the course of his reasons, the Senior Member, compendiously, described the initial contribution by the defendant to the purchase price ($60,000) and the payments by him of reduction of the mortgage loan ($34,797.95) as contributions to "the acquisition of a property".

28 It is true, as suggested in the written submissions of the plaintiff, that a payment in reduction of a mortgage loan is not, strictly, a contribution to the purchase price of a property.[5] However that point is not relevant to the application of s 233 of the Act. Section 233(2)(c), which I have set out above, requires the Tribunal, when exercising powers under subsection (1), to take into account (inter alia) payments by a co-owner of more than that co-owner's proportionate share of both the purchase money and mortgage repayments. Thus, while the Senior Member, no doubt for reasons of brevity, compendiously characterised the payments by the defendant of the purchase price and of the mortgage debt as contributions to the "acquisition" of the property, he correctly took the mortgage repayments into account in determining the adjustment to be made to the parties' interests in the property.

29 The second submission by Mr Lim is based on the well-known presumption that legislation is not intended to alter, or affect, existing rights or interests, by reference to past events. That canon of statutory interpretation was stated in the following terms by Dixon CJ in Maxwell v Murphy:[6]

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events."[7]

30 In considering that principle, it is important to bear in mind the qualification, stated by Dixon CJ, that the presumption against retrospectivity may be displaced by a contrary intention, which is either expressed in the amending statute, or which may be derived by clear implication from that statute.[8]

31 Mr Coote sought to avoid the application of those principles by submitting that this case did not involve any question of the retrospective operation of the amending legislation of 2005. He submitted that Part 4 of the Act, as amended, only applies on the termination of the co-ownership relationship. As such, it deals with the remedies available, at that time, on appropriate application by a co-owner of the land. Mr Coote relied on the decision of the High Court in Chang v Laidley Shire Council[9] in support of that proposition.

32 In my view, Mr Coote's submission does not meet the argument advanced on behalf of the plaintiff. The issue in this case is not whether the plaintiff, or indeed the defendant, had a right, under the Act, to make an application for the sale or division of the property. Rather, the question which arises is whether, on such an application, the provisions of Part 4 of the Act, as amended by the 2005 Act, apply. The argument, on behalf of the plaintiff, is that those provisions do not apply, as they contain a power to alter or vary pre-existing accrued rights and interests in the property.

33 Ultimately, the question raised by the second submission, advanced on behalf of the plaintiff, must be determined in accordance with the principles which I have set out above. Essentially, as a matter of statutory construction, those principles direct attention to the legislative intention in respect of the amending legislation, taking into account that legislation is presumed not to operate retrospectively, so as to disturb accrued rights, unless a contrary intention is found in the amending enactment.

34 In determining the application of those principles to this case, it is, first, necessary, to consider the effect of Part 4 of the Act, as introduced by the 2005 Act. In particular, Part 4, by its terms, does not, of its own force, operate to alter or affect existing interests or rights to property. Rather, it confers a power on the Tribunal, exercisable on an application made to the Tribunal under that Part, to make an order adjusting the respective interests of co-owners of property. The question, raised by Mr Lim's second submission, is whether that power, provided by the amendments to Part 4, was intended to apply to disputes between co-owners of property, where the interests of those co-owners had been acquired before the commencement of the 2005 Act on 1 July 2006.

35 The answer to that question is to be found in s 234I of the Act, which provides:

"Part 4 as in force immediately before the commencement of section 5 of the Property (Co-Ownership) Act 2005 continues to apply in respect of any proceeding commenced in the Supreme Court or the County Court under that Part before that commencement as if Part 4 had not been substituted by that Act."

36 Two important observations may be made concerning that section. First, if Parliament had intended that the amendments, made in 2005, should only apply to interests acquired in property after the commencement of the 2005 Act, s 234I would have been expressed quite differently. The fact that s 234I, by its terms, only excludes, from the operation of the 2005 Act, proceedings that had already been commenced, carries with it the implication that the amending legislation was intended otherwise to apply to interests in property acquired before the commencement of the 2005 Act.

37 Secondly, and connected with that observation, it was the clear intention of the 2005 Act to transfer exclusive jurisdiction in respect of co-ownership disputes from the Supreme Court and the County Court to the Tribunal. Section 1(a)(i) of the 2005 Act specified that purpose as one of the "main purposes" of that Act. Section 234C, introduced by the 2005 Act, provides that, with some exceptions, the Supreme Court and the County Court do not have jurisdiction to hear an application under Part 4 of the Act. If the submission made on behalf of the plaintiff is correct, the exclusive jurisdiction, transferred to the Tribunal, would not extend to disputes between co-owners in respect of interests acquired before the commencement of the Act. Those disputes would remain with the Supreme Court and the County Court. As a result, the intended transfer of that jurisdiction in respect of co-ownership disputes, from the courts to the Tribunal, would be delayed for a substantial period of time, and the intention of Parliament, to transfer exclusive jurisdiction in respect of those disputes to the Tribunal, would, at least for the foreseeable future, be substantially frustrated.

38 Indeed, Mr Lim did not seem to contend that, in the present case, the 2005 Act was not applicable, so that the Tribunal did not have jurisdiction to hear the matter. Rather, he focussed on s 233(1)(c) of the Act, contending that, in such an application, that provision does not apply to property rights acquired before the commencement of the 2005 Act. The effect of that proposition, if accepted, would be quite unusual. If Mr Lim's submission is correct, the provisions of Part 4, introduced by the 2005 Act, would apply to all proceedings between co-owners of property commenced after 1 July 2006 (regardless of when the co-owners had acquired their interest in the property), except that one provision, namely, s 233(1)(a), would not apply to permit an adjustment of interests which had been acquired before that date. The effect of that interpretation would become even more incongruous in the case of a dispute between one co-owner, whose interest was acquired before 1 July 2006, and another co-owner, whose interest was acquired after that date. There is nothing in the 2005 Act that supports a contention that it was intended to commence in such a piece-meal and unusual way, so that one provision in it (notably, s 233(1)(c)) should commence to apply at a future date, or at future dates, depending on the date on which the interests of the co-owners in the property had been acquired. Rather, s 234C and s 234I each lend support to the contrary proposition, namely, that the whole of Part 4, as amended by the 2005 Act, was intended to apply to all proceedings commenced after 1 July 2006.

39 Based on those considerations, I do not accept the submission by Mr Lim that Part 4 of the Act, as amended in 2005, or at least that s 233(2) of the Act, was not intended to apply to interests of co-owners in property acquired before the commencement of the Act. In my view, the Tribunal had power to apply the provisions of Part 4, as amended, to the dispute between the plaintiff and the defendant. It follows that the seventh ground of appeal should fail.

40 The third submission by Mr Lim was that the Senior Member erred by failing to take into account a number of relevant factors. As I have stated, that submission incorporated the third, fourth and sixth grounds of appeal.

41 The difficulty with Mr Lim's submission is that he failed to point to any evidence before the Senior Member, in relation to any of those three matters, which the Senior Member failed to take into account. Mr Lim conceded that there was no evidence, adduced before the Senior Member, as to the current market value of the property, or as to the increase in the value of the property since the date of its acquisition. Similarly, Mr Lim did not point to any evidence relating to contributions made by the plaintiff towards expenses after the acquisition of the property. The Senior Member, in his reasons, did refer to the fact that the defendant and his family lived in the property with the plaintiff. However, assuming (without deciding) that that circumstance might be relevant to an adjustment made under s 233(1)(c) of the Act, Mr Lim has not identified any evidence demonstrating that, in some way, that fact conferred a greater benefit on the defendant than on the plaintiff. It follows that I do not accept the third submission by Mr Lim, and accordingly grounds 3, 4 and 6 of the grounds of appeal fail.

42 For the reasons that I have set out above, the plaintiff has failed to demonstrate any error of law by the Senior Member in his decision. Accordingly, the appeal by the plaintiff to this Court fails, and the proceeding should be dismissed. I shall hear counsel on the question of costs.

[1] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242, 252 (Gibbs CJ), 257-8 (Mason and Brennan JJ); Muschinski v Dodds [1985] HCA 78; (1984) 160 CLR 583.

[2] [1957] HCA 7; (1957) 96 CLR 261, 267.

[3] Victorian Law Reform Commission, Dispute Between Co-Owners Report (2001).

[4] [2007] HCA 37; (2007) 234 CLR 1.

[6] [1957] HCA 7; (1957) 96 CLR 261, 267.

[7] See also Kraljevic v Lake View and Star Limited [1945] HCA 29; (1945) 70 CLR 647, 652 (Dixon J); Ku-Ring-Gai Municipal Council v Attorney-General for the State of New South Wales [1957] HCA 61; (1957) 99 CLR 251, 269 (Fullagar J); Staska v General Motors Holden Pty Ltd [1972] UKPCHCA 1; (1972) 123 CLR 673, 675.

[8] See for example Wilson v Moss [1909] HCA 7; (1909) 8 CLR 146, 161-2 (O'Connor J); Worrall v Commercial Banking Co of Sydney Limited [1917] HCA 67; (1917) 24 CLR 28, 32 (Barton, Isaacs and Rich JJ); Zainal Bim Hashim v Government of Malaysia [1980] AC 734, 741-2.

[9] [2007] HCA 37; (2007) 234 CLR 1, esp at 33 (Hayne and Crennan JJ).