Squire, Robert Weir v Rogers, Francis C. [1979] FCA 85

Federal Court of Australia|1979-07-01|Before: Deane JJ

Co-owners - lease in perpetuity of land - appellant co-owner in sole occupation carrying on business for reward - sale or partition - allowance for capital expenditure on improvements - account of rents and profits ~ whether respondent co-owner entitled to benefit of income from improvements made by , appellant without contributing thereto - whether appellant entitled to an allowance for his work and labour - effect of

Sale or partition - jurisdiction of Court to order same - Partition Act, 1881, S.A. - effect of Darwin Town Area Leases Ordinance, 1947 - temporal reference point for construction of Partition Act, 1881, S.A. - distinction between making a

Application for adjournment - circumstances in which an Appeal Court will interfere with the exercise of discretion of a judge

of first instance as to the mode and time of trying an action.

Application to amend Notice of Appeal ~ reluctance of Appeal Court to permit point to be raised on appeal which was not taken

in the court below does not extend to a question of lack of

ON APPEAL from the Supreme Court of the Northern Territory of Australia

NORTHERN TERRITORY DISTRICT REGISTRY No. N&G 14 of 1978

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

i. That the Defendant be given leave to amend the Notice

of Appeal: (i) by inserting, after the number 1. following the

of the Notice of Appeal, the follow1ng: "A. That the Supreme Court of the Northern Territory has no jurisdiction to order sale

=2- Defendant on the grounds tnat: (a) the jurisdiction to order the said sale is conditional upon the Court having

B. by inserting in Ground No. 11 of the Grounds of Appeal after the words "rents or profits" the

by adding at the end of the second clause (a) in the Notice of Appeal after "6th September,

"or alternatively that the said Order be varied to read: 'That the following account and inquiry be taken and made, that is to say: (1) an account of all moneys which the Defendant has received to which the

were entitled as joint tenant; and (ii) an inquiry as to the amount expended by the Defendant upon capital improvements . to the said land, and to what extent the present

Order that the Orders made by the Supreme Court be

varied by substituting for such Orders the following Orders:

Hundred of Bagot comprised in Darwin Town Area Lease No. 1814 and entered in Register Book Volume 48 Folio 93 (hereinafter referred to as "the said land") be sold out of Court by the Respondent under the direction of a Judge in

(a) the costs of the action and of the appeal to the Federal Court of Australia as may be agreed between the parties or as may he

(b) the ordinary costs, charges and expenses of the said sale, as may be allowed by a Judge in Chambers; and

such sum to be determined in the manner directed by a Judge in Chambers. THAT after the payment of those sums set out in paragraph 3 hereof, the said proceeds of the sale shall be divided into two equal parts and one part paid to the Respondent and one part paid

of and incidental to her attendance to give evidence in this matter including her reasonable

NORTHERN TERRITORY DISTRICT REGISTRY ) No. NIG 14 of 1978 ) )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

I have had the advantage of reading the judgment of Deane J. I agree with it and the orders he proposes and

I certify that this andthe preceding pages a2 a true copy of the Reasons for Judgment herein of his Honor

IN JHE FEDERAL COURT OF AUSTRALIA ) ) NORTHERN TERRITORY DISTRICT REGISTRY)

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

I have had the advantage of reading the reasons for judgment of Deane J. I agree in the judgment which his Honour proposes, and in his reasons for proposing it, subject to a qualification presently to be mentioned. The appellant raised two defences to the claim for the order for sale of the jointly-owned property - the first relating to the respondent's delay in bringing proceedings in the Supreme Court of the Northern Territory, and the second relating to the requirement in s.29 of the Darwin Town

that each parcel of leased land should be held and occupied by or under the lessee as one undivided parcel. Each

defence was said to take the case out of s.4 of the

Partition Act 1881(5.A.), the section which conferred jurisdiction upon the Supreme Court to make the order for sale in lieu of partition against which this appeal was brought. Section 4 is expressed to apply "in an action for partition, where, if this Act had not been passed, a decree for partition might have been made...". It was submitted that, by reason of the defences, the case was not one where a decree of partition might have been made if the Act had not been passed.

In xejecting these defences, his Honour has decided that the legal context which existed when the Act was passed in 1881 (or which must be notionally considered to have existed at that time) is the relevant context in which to determine whether an order for partition might have been made had the Act not been passed. I should wish to reserve my opinion on this question. My concurrence with his Honour's judgment is not thereby affected. Whether one chooses 1881 or some later date, the defence relating to delay fails for the reasons which his Honour gives. Equally, s.29 of the Ordinance in whatever temporal context it is considered, does not affect the jurisdiction of the Court to make a decree of partition. The defences fail, at whatever time

I certify that this and the one preceding pageg ace a true copy of the Reasons for Judgment herein of his Honour Mr. Justice 7)

NORTHERN 'TERRITORY DISTRICT REGISTRY ) No. NTG 14 of 1978 . ) GENERAL DIVISION )

AN APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

DEANE J: Robert Weir Squire ("the defendant") appeals against

an order made by the Supreme Court of the Northern Territory

for the sale of the estate of himself and Miss Frances Rogers ("the plaintiff") as tenants under a lease in perpetuity of approximately one and a half acres of land situate at Nightcliff

within the Darwin Town Area. The defendant also appeals against

an order that an account be taken of the rents and profits received by him in respect of the subject land since 5 September,

The relevant orders were made by the Supreme Court in proceedings instituted by the plaintiff on 14 December, 1976. These proceedings were listed for hearing on 5 October, 1978. When the matter was called on that day, counsel for the defendant informed the Court that he had been briefed to appear for the defendant some three minutes previously. The explanation pro- ferred to the Court was that the defendant had been advised on 28 September, 1978, by his previous legal representatives that they were unprepared to continue to act for him because of his failure to pay their professional fees. Counsel for the defendant sought an adjournment "for so long as possible".

This application for an adjournment was opposed by counsel for the plaintiff who tendered a letter dated 27 September, 1978 from the defendant which concluded with the statement that he "no longer wished" his previous solicitors to act for him. No suggestion was made that the professional fees which the defendant declined to pay were excessive or that the defendant was unable to pay them. Counsel for the plaintiff informed the Court

that his client, whom he described as "too old and frail" for regular travelling, had travelled from the United States where she lived to Australia for the case and would need to return to the United States if the case did not proceed and subsequently return to Australia for any adjourned hearing. The learned trial judge suggested to counsel for the defendant that he apply

for a short adjournment to enable him to take instructions and

indicated that he would then favourably consider an application for an adjournment to the following day. His Honour added that, so far as he was concerned, the case was to proceed "to day or tomorrow'. This last-mentioned statement was made in a context where his Honour had twice indicated that his "inclination"

to refuse to grant a more lengthy adjournment was the result

Later in the morning, after a second short adjournment to enable negotiations between the parties to continue, counsel for the defendant applied for, and obtained, an adjournment of the proceedings to the following day which was a Friday. On that day, evidence was heard. At mid-afternoon when the evidence had seemingly been completed, counsel for the defendant indicated that the defendant was "asking that the land be divided, not sold" and was granted, at his request, an adjourn- ment of the proceedings until the following Monday to enable the more precise formulation of a proposal for partition.

When the proceedings were resumed, counsel for the defendant sought and obtained leave to re-open the defendant's case. Leave was granted and a plan of proposed subdivision of the subject land was received in evidence. Arising from that evidence, further evidence was led by the plaintiff. Counsel

then addressed and the learned judge reserved his decision.

The facts as disclosed by the evidence before the Supreme Court were largely undisputed and can be briefly stated. The perpetual lease to the parties issued under the

provisions of the Darwin Town Area Leases Ordinance 1947 on

pare eeiehon wer TTS Doreen Vo Ren Denes wk: VWs Satan On Vea Es Vm anova a PE td op

30 October, 1962 with effect from 5 September, 1961. It required 'that within one year of its commencement, or such further time as the Administrator of the Territory might

allow, there be buildings on the land of a total value of not less than $15,000. The annual rental reserved by the lease

was forty pounds until 30 June, 1970 and, thereafter, five pounds per centum of the unimproved value of the land as deter- mined from time to time under the Ordinance. Before the issue of the perpetual lease, the land had been held by the defendant under a special lease. The defendant had permitted the plaintiff to live on the land for some years and the plaintiff had been responsible for effecting some improvements on the land includ- ing the erection of a hut. It was the defendant's decision that the perpetual lease should issue in the joint name of the plaintiff and himself. In June, 1963, some eight months after the issue of the perpetual lease, the plaintiff, who was and is an American national, left Australia to return to the United States. It would seem that, apart from a card which she sent on the Christmas after her departure, she had no communication with the defendant until, some thirteen years later, she returned to Australia to claim the benefit of her interest in the

subject land and, ultimately, to institute the present proceedings.

The improvements on the land at the time the perpetual lease issued were, apparently, not accepted by the Administration as appropriate to be taken into account for the fulfilment of the covenant relating to required building improvements. The defendant caused two buildings which he described as "twin

blocks of flats! to be erected on the land at, he estimated,

a combined cost of between $40,000 and $50,000. He caused

other improvements to be effected on the land and there carried on a business of letting flats and rooms and conducting a caravan site. These buildings and improvements were largely destroyed by Cyclone Tracy in December, 1974. After the cyclone, the defendant expended further moneys on improvements. A valuation which was received in evidence indicated that the present improvements included a swimming pool and a total of eleven sub-standard buildings, comprising nine flats, fifteen single rooms, a recreation shed and an ablutions block. The gross annual income derived from the business of providing accommodation in flats, rooms and caravans and letting caravan sites was estimated, ignoring income from caravans and caravan sites, to be in excess of $19,000. The defendant estimated that his total expenditure on improvements, before and after the cyclone of 1974, was at least $100,000. His evidence to that effect was not challenged in cross-examination. It was not suggested that the plaintif£ had made any contribution at all

to the improvements effected to the subject land after the grant

of the perpetual lease. All outgoings, including rent, had

Little assistance as to the real issues between the parties is to be derived from the pleadings. The Statement of Claim sought an order for sale or, alternatively, an order for partition, an order for an account and ancillary orders. It contained allegations of the basic facts as to the grant of the lease, the registration of the plaintiff and the defendant

as proprietors of the leasehold interest, the improvements on

the land and the carrying on by the defendant of the business

on the land. All of these allegations were admitted by the defence. Allegations in the Statement of Claim that the plaintiff and the defendant held their leasehold interest as joint tenants, that a sale would be more beneficial than partit- ion and that the plaintiff was "interested in the leasehold estate" were denied by the defence which raised a number of

legal defences. These legal defences were summarized by the

learned trial judge, in his reasons for judgment, as being:

"1. At the date of the purported grant to the plaintiff of a leasehold estate in the subject land she was not a Brttish subject and was therefore not qualtfted to hold the grant of leasehold land as presertbed by s.6 of the Darwin Town Area Leases Ordinance in force at the time of the granting of the lease.

The plaintiff ts not a joint tenant of the said estate but a tenant tn common.

fhe plaintiff is not entitled to the remedies elatmed or any of them.

The plaintiff is statute barred by reason of the Limitation of Aettons Act 1866-67 of South Australia.

the relief sought". The learned judge stated that, on the hearing of the action, "the defendant did not persist in any of these defences, but in the end result contended that the Court should order a division of the property between the plaintiff and the defendant and put forward a plan of subdivision which would give effect to this proposal". An examination of the transcript

confirms the accuracy of his Honour's observation in relation

to the claim for an order for sale. The only defence to that

claim pressed by the defendant was that, in the circumstances, an order for partition and not an order for sale should be

| made. The position is not, however, quite so clear in respect

of the plaintiff's claim for an account of rents and profits.

It is difficult to discern from the transcript of both evidence and argument which, if any, of the defendant's sub- missions were intended to relate either to the question whether an account of profits should be ordered or to the question of what matters should be regarded as relevant on the taking of 'any such account. At one stage, counsel for the defendant submitted that the result of the plaintiff's absence, lack of communication and failure to contribute to the earning of income was that "she would not be entitled to any income from that property". Subsequently, that submission was neither developed nor expressly abandoned. It was conceded by the plaintiff that the defendant was entitled, on the division of any proceeds of sale of the subject leasehold, to receive an allowance in respect of actual capital expenditure to the extent to which the proceeds of sale could be attributed to enhancement of value of the land as a result of the relevant improvements. Otherwise, there would appear to have been no submissions directed either to the defendant's entitlement, on the taking of any account, to the benefit of an allowance in respect of proper disburse- ments or in respect of his own work and labour or to the effect of any statute of limitations upon the plaintiff's entitlement on such an account. More important, the question whether, on the taking of an account of any rents or profits arising from

the use of capital improvements, the plaintiff was entitled to

participate in the benefit of the income of the improvements while being free of any obligation to make any contribution or allowance in respect of their cost, appears not to have been

The Notice of Appeal filed on Behalf of the defendant sought a new trial of the action on the ground of an alleged failure by the learned trial judge to grant to the defendant a sufficient adjournment of the trial of the action so as to enable the defendant properly to defend the action. Orders setting aside the order for sale and the order for an account or, alternatively, changing the content of any order for an account were sought on a number of other grounds. For present purposes, the grounds which remain of relevance relate to alleged laches, estoppel by conduct and, as regards the order for an account, the applicability of the provisions of the Limitation of Suits and Actions Act (S.A.} 1866-67 which is in force in the Northern Territory.

At the commencement of the hearing of the appeal, counsel for the defendant applied for leave to amend the Notice of Appeal by adding a further ground of appeal denying the jurisdiction of the Court to make che order for sale. Leave to amend the Notice of Appeal was also sought so as to make clear that the attack on the order for an account extended to the making of any order at all and was not confined to a submission that the order extcnded beyond a relevant limitation period.

In the course of argument, a further application was made for

leave to amend the Notice of Appeal to enable the defendant more

fully to attack the form of the order for an account. The question whether the defendant should be given leave to make

all or any of these amendments was reserved and the Court directed that the appeal proceed on the basis that leave to make the necessary amendments had been given and that the amend-

In my view, the defendant should be given leave to make all the proposed amendments to the Notice of Appeal. In so far as those amendments relate to the jurisdiction of the Court to make any order for sale, it is not suggested that the plaintiff had refrained from leading any evidence which would have been led if the point had been taken in the Court below and the ordinary reluctance of an appeilate court to permit a point to be raised, for the first time, on the actual hearing of an appeal does not extend to the case where the point is a bare legal point which, if correct, means that the Court below lacked jurisdiction to make the orders which it made. The position is not so clear in so far as the proposed amendments would raise questions relating to the order for an account. It will, however, appear from what is said hereunder that I am of the view that the circumstances are such that the defendant should not be precluded from raising, on this appeal, any argument as to the entitlement of the plaintiff to an order for an account or as to the appropriate form which any such order should take. Since the other members of the Court are also of the view that the defendant should be permitted to amend the

Notice of Appeal in the manner sought, I shall proceed to deal

with the issues raised on the appeal on the basis that the desired

amendments to the Notice of Appeal Have been effected.

The first argument advanced on hehalf of the defendant on the appeal was that the orders made should be set aside and a new trial ordered on the ground that his Honour shouid have granted the defendant an adjournment of the hearing of the

The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances (Conroy v. Conroy [1917] 17 S.R. (N.S.W.) 680 at p. 682). Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require know- ledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing. A court of appeal will not, as a general rule, interfere with the decision of a judge of first instance on that question unless it is sat- isfied that the exercise of his discretion has miscarried in the sense that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal (see, for example, Federal

Court of Australia Act 1976, s.27) and the benefit of hindsight

in a case where it can be seen that serious injustice has

resulted or will, in fact, result from the exercise of the

L.T. Journ. 265) it was held by the United Kingdom Court of

Appeal (Cozens-Hardy M.R., Moulton and Buckley L.JJ) that:

"although tt could not befaid that under no ctireum- stances would the Court of Appeal be justified in interfering with the discretion of the learned judge in a court below as to the proper mode and time of trying an aetton, yet tt would only be tn the most extraordinary ctreumstances that an applieation to review the dectston of the learned judge as to the conduct of the business in his own court could succeed; that the only ease in whteh the Court of Appeal would so interfere would be if satisfied that the decision was such that, notwtthstanding any exerctse by the learned judge of the power of control whieh he would have over the action when it came on for trial, justice did not result and he had failed to see that such would be the effeet of hts deetston;".

That statement of principle has been quoted with approval in a

number of subsequent cases (see, for example, Maxwell v. Keun

L.R. [1928] 1 K.B. 645 at p. 650; Conroy v. Conroy, supra

at p. 683). It is of particular relevance to a case where the exercise of discretion has resulted in a refusal of an adjourn- ment in that it recognizes the need to take into account, in considering the effect of a refusal to grant an adjournment, the control which the judge will enjoy over the action when it comes on for trial including, particularly in a case such

as the present where no jury is involved, the power to deal with any particular applications for adjournments which may

The present matter was, as has been seen, listed to be heard on a day almost two years after its commencement. The plaintiff had travelled from America for the hearing. The letter from the defendant to the plaintiff's solicitors which was placed before his Honour indicated that the defendant's predicament resulted from his own deliberate action. The plaintiff's frail condition and the need to return to America and return to Australia if any lengthy adjournment were granted

were also advanced by her counsel as factors supporting the

refusal of any lengthy adjournment. Plainly, there were grounds

'for the view which his Honour formed that the matter should

proceed either on the day fixed for the hearing or on the

following day. As has been mentioned, his Honour's expression

of that view was made in a context which made clear that the view

that he was expressing was not one to which he was necessarily finally committed. Thereafter, counsel for the defendant made a number of particular applications for adjournment. All were

There is no basis whatever in the circumstances of the present matter for a finding that there was a failure by the learned judge properly to exercise his discretion in deal- ing with any of the applications for an adjournment that were made to him. To the contrary, I respectfully agree with the learned judge's exercise of his discretion on each occasion when a question of adjournment arose for his determination. His refusal to grant the adjournment "for so long as possible"

which was initially sought was, in my view, correct. No

subsequent application for an adjournment was refused.

The defendant has not sought to place any fresh naterial 'before this Court in relation to the question of the adjournment of the proceedings. It has not been suggested that the defendant was, as a result of the refusal to grant a lengthy adjournment of the proceedings, precluded from calling any particular evidence which it was desired to call or that any particular evidence which would be of assistance to the

defendant was not, in fact,called. The attack on any failure

The defendant's next argument on the appeal was that the Supreme Court had no jurisdiction to make the order for sale which was made. It is common ground between the parties that any jurisdiction of the Supreme Court to make the order for sale must be found in the provisions of the Partition Act 1881 of South Australia which is in force in the Northern Territory. The sections of that Act conferring jurisdiction to make such an order (ss. 3, 4 and 5} are, in terms, limited to " (ijn an action for partition, where, if this Act had not been passed, a decree for partition might have been made".

The argument advanced on behalf of the defendant was that such a decree for partition might not have been made in the circun- stances of the present matter for two distinct reasons. First,

that the provisions of s.29 of the Darwin Town Area Leases

Ordinance 1947 ("the Ordinance") would have precluded the making of such a decree. Second, that a court of equity would have declined to make such a decree by reason of the equitable defences of laches and estoppel by conduct. Implicit in the

defendant's argument is the assumption that the words "where, if

this Act had not been passed, a decree for partition might have been made" add to the prior reference to "an action for partition" at least the requirement that the circumstances of the particular case are such that the court would have had jurisdiction to make an order for partition. The validity

of this assumption was not put in dispute by the plaintiff and, in view of the conclusion which I have in any event reached

on the defendant's attack on the order for sale, I propose,

for the purposes of the appeal, to accept it as valid. It should however be noted that, at the time the Partition Act 1881 (S.A.) was enacted, Sir James Bacon V.C. had already expressed, in strong terms, the view that the corresponding provisions of

the United Kingdom Partition Act 1868 were the result of verbosity

and added nothing to the words "(i)n an action for partition" (Pryor v. Pryor [1874-75] L.R. XIX Eq. Cas. 595 at p. 598 and

cf, Walker, The Partition Acts, 2nd Edition (1882), at p. 27).

Section 29 of the Ordinance provides, for present purposes, that subject to s.29A, each parcel of land included in a lease shall, except where a portion of the parcel is acquired by the Territory, at all times be held and occupied by or under the lessee as one undivided parcel. Section 29A provides for an application for approval to subdivide land that is subject to a lease under the Ordinance. Where approval to subdivide is obtained, the Ordinance prescribes a procedure for the grant of a new lease in respect of the various lots in the subdivision. Jt would appear to be common ground that there has not been any application for approval to subdivide

the subject land. A court would plainly decline to make an

order which would, in itself, involve a division of holding or Ul

occupatidn under a lease in breach of the provisions of s.29

At the threshold of the defendant's argument based upon the provisions of s.29, there lies a general problem of the construction of the sections of the Partition Act 1881 (S.A.) which confer jurisdiction to make an order for sale (ss. 3, 4 and 5). The operation of each of those sections is, as has been mentioned, confined to an action for partition where, tf this Aet had not been passed, a decree for partition might have been made. On the assumption that the italicized words add a requirement or qualification to the words "an action for partition", the threshold problem concerns the ident- ification of the temporal reference point for determining the legal context in which the question whether a decree for partition might otherwise have been made falls to be answered. Is the relevant context that into which the Partition Act 1881 (S.A.) was introduced, namely, the law of the colony of South Australia at the time that Act commenced operation? Or is it the law operating at the time and in the place of the institution of the relevant proceedings, namely, the law of the Northern Territory on 14 December, 1976? Or is it the law operating at the time when the order for sale was made, namely, 9 October,

1978? Or is it some other, and if so what, legal context?

The Partition Act 1881 (S.A.) was based upon, and substantially adopted, the provisions of the United Kingdom

Partition Act of 1868. It is facultative legislation in that

it confers a wide -power to make an order for sale in lieu of partition in circumstances where previously sale in lieu of partition was only available, with the assent of the Court, if all parties agreed that a sale was the most beneficial way

of disposing of their interests (see, Pryor v. Pryor, supra;

North v. Guinan, Beatty, 342). The legislation not only had the

effect of making an order for sale available as a general alternative to an order for partition. It made the remedy of sale the preferred remedy in that, all other things being equal, an order for sale in lieu of an order for partition was to be made if an owner of a moiety requested sale and the owner of

the other moiety sought actual partition. It was inevitable that the effect of the legislation would be that the alternative remedy of sale would displace the remedy of judicial partition as the ordinary order in a partition suit. By 1876, the author of the first published textbook on the United Kingdom legislat-

ion (Walker, The Partition Acts, lst Edition) could comment

that "the Court does not often now decree partition".

In these circumstances, it would seem unlikely that it was the legislative intent that the general jurisdiction to make an order for sale should be confined to those circumstances in which, under the law as it might from time to time in the future exist, the increasingly rare order for actual partition of the relevant property might be made. It would seem more likely that it was the legislative intent that the circumstances in which the general jurisdiction to make an order for sale should exist would be those in which an order for partition

might have been made at the time when the Act first spoke. The

use of the words "might have been made" (and not "might be

made") lends some support for the latter construction which is,

in my view, the 'correct one. The words "if this Act had not

been passed" were, on that construction, necessary for the ' reason that the temporal reference point is the time when the

Act first operated and not the time immediately before its

commencement. (See Walker, The Partition Acts, 2nd Edition

p. 27; Joyce v. Joyce [1963] Qd. R. 139 at p. 153; Patel v. '

Premabhai [1954] A.C. 35 at p. 45 (where the point was left

open); and cf. Pacini v. Pacini (unreported) Supreme Court

of the Northern Territory (Blackburn J.) 23 November, 1967).

It follows that the question whether a decree for partition

"might ... have been made" falls to be answered, in the present matter, in the context of the law of the colony of South Australia at the time when the Partition Act 1881 (S.A.) commenced to operate. The resolution of that question involves a determin- ation of the existence of jurisdiction to make an order for partition and not a preliminary trial to determine whether,

in the exercise of jurisdiction, a court should, as distinct

If the provisions of s.29 of the Ordinance comprised a general prohibition on the subdivision of any land within a designated area, the above conclusion would suffice to dispose of the defendant's argument for the reason that the provisions of an Ordinance made in 1947 plainly would not constitute any part of the legal context in which the question in point fell to be answered. The provisions of s.29 do not,

however, comprise any such general prohibition. They are

restricted in their operation to land included jn a lease

under the Ordinance and constitute part of the definition of the obligations and rights of a lessee under a lease granted under the Ordinance. The provisions of 8.29 of the Ordinance may be irrelevant to the legal context in which the question whether a decree for partition might, in the circumstances of the case, have heen made, falls to be answered. They are, however, relevant in that they constitute part ! the cizcum- stances of the case in that the joint property iS property which cannot lawfully be divided otherwise than in accordance with the provisions of the Ordinance. 'he appropriate question, in the circumstances, is whether a decree for partition might, under the law of the colony of South Australia st the time the Partition Act 1881 (S.A.) was introduced, propeily have been made in respect of the estate of joint tenants under a lease granted in pursuance of a legislative enactment of the colony whose provisions corresponded to the provisions of the Ordinance. The answer to that question is to be found in the distinction between the making of a decree for partition anti the carrying

The usual decree which was made in a pdjrtition suit prior to the various Partition Acts did not effect an immediate subdivision of the property in respect af which the decree was made. The form of decree expressly jecognized that actual subdivision might never be effected in that it reserved to the parties liberty to bring in proposals fui a sale- If all

the parties were agreed that a sale was the most beneficial

way of disposing of their interests, the court Would assent

to the decree for partition being carried into effect by such

a sale (Pryor v. Pryor, supra; North v. Guinan, supra). It

'is plain that a sharp division is drawn between the decree and the carrying out of the division of the land under it. Indeed, the decree might have been carried out in one of two ways, either hy dividing the property or by a sale by consent of all the parties, and if the latter course had been followed it could not be said ... that a partition decree had not been

made". (Patel v. Premabhai (supra) at p. 47). "A decree for

partition" and "division" or "subdivision" are two different

The requirement of s.29 of the Ordinance that land be heid and occupied as one undivided parcel would not preciude the actual making of a decree for partition. The making of such a decree would not, in itself, involve a division of the holding or occupation of the land in respect of which the decree was made. The existence of the provisions of s.29 might lead the court either to frame a decree for partition in such a way as to ensure that the necessary approval for subdivision was obtained before the decree could be carried into effect by actual division of the property or to provide, by ancillary orders, for the actual making of an application for approval of the necessary subdivision (see, for example, the form of order made in Dougan v. Ley (1946) 71 C.L.R. 142 at pp. 145, 152 and 154). Those provisions might, in certain circumstances, lead the court to decline to make an order for partition on

the grounds that it would be futile to do so (North v. Guinan,

supra). There is nothing, however, in the provisions of s.29

of the Ordinance which deprives the court of its jurisdiction to make a decree for partition or which operates to deprive the present proceedings of their character as an action for partition where, if the relevant Partition Act had not been

passed, a decree for partition "might have been made".

In Patel v. Premabhai (supra), the Judicial Committee

of the Privy Council held that a provision in the Fijian Subdivision of Land Ordinance, 1937 to the effect that land to which the Ordinance applied should not be subdivided without the prior approval of a board established under the Ordinance would not, for the purposes of the relevant provisions of the United

Kingdom Partition Act 1868 which was in force in Fiji, have

the effect of preventing the making of a decree for partition of land notwithstanding that the necessary approval for sub- division had not been obtained. Their Lordships examined the distinction between the making of a decree for partition and the carrying of it into effect and concluded that a decree for partition could be made even if the actual division could not be effected without breach of the terms of the Fijian Ordinance. "It is", their Lordships said, "not the making of the decree which is prohibited but the subdivision of the land which

would otherwise result from the making of the decree". They

"Thetr Lordships' view is in no way altered by the fact that under sectton ll of the Ordinance the tand in questton in the present tnstance could not,

owing to tts diminutive size, be divided save in exzceptronal cireumstances, the qvestton being not Could it be divided? But Could a decree for partition be made?

seetton 3(a) inimical to this opinton. All that that definition means ts that a divtston or sub- division takes place within the meaning of the Ordinance, tf the land is in facet divided, whether it tsidivided for the purpose of sale or conveyance or transfer or lease or sublease or mortgage, making an agreement, partition or otherwise dealing with the property. But it is not divided merely because an order for partition ts made: there is nothing to prohtbit the making of such an order. What is forbidden is the carrying out of the order by actual partition unless and until the approval of the board, set up by the Ordinance has been

... on the true construction of the Ordinance all that ts forbidden is the actual division of the tand or the earrying out of a decree for partition without the consent of the board.

The making of a decree is not prohibited, and as such a decree might have been made (though it could not be implemented by actual diviston of the property) a dtreetion for sale of the property ts permisstble under the terms of the Act of 1868".

It was submitted on behalf of the defendant that the requirement in s.29 of the Ordinance that the subject land be held and occupied as one undivided parcel was quite different from the prohibition upon subdivision which was contained in the Fijian Ordinance in Patel's Case. In my view, this is not so. The Fijian Ordinance contained (s.3) a wide definition of "subdivide" which included "partition" and "parting with the possession of any part thereof''. The requirement in the Ordinance and the prohibition in the Fijian Ordinance were both subject to the power of a public authority to approve subdivis- ion. In neither the present case nor the Fijian case was such approval obtained. In my view, the decision of the Privy Council in Patel's Case supports the conclusion that the provis- ions of s.29 of the Ordinance would not preclude the making of

a decree for partition. That conclusion is contrary to the

decision of Blackburn J. in Pacini v. Pacini (supra) but accords

with the reasoning of Jeffriess J. of the Supreme Court of

Queensland in Joyce v. Joyce (supra) and of Jones J. of the

Supreme Court of Western Australia in De Campo Holdings Pty.

Limited v. Cianciullo ([1977] W.A.R. 56 at p. 60). It also

accords with the decisions of various single justices of State Supreme Courts that a legislative provision prohibiting or rendering ineffective a transfer or sale without consent

does not, as a matter of jurisdiction, preclude the making of an order for sale in a case where the necessary consent has not been obtained for the reason that the making of the order for sale, as distinct from carrying it into effect, does not involve any breach of the relevant legislative prohibition (see

Blennerhasset v. Blennerhasset [1957] V.R. 214; Fairweather v.

At a glance

Court

Decision date

Before

Source

Judgment (332 paragraphs)