Bray v Bray [1926] HCA 40; (1926) 38 CLR 542 (8 November 1926)

HIGH COURT OF AUSTRALIA

James Bray Defendant, Appellant; and John Bray and Another Plaintiff and Defendant, Respondents.

H C of A

On appeal from the Supreme Court of New South Wales.

8 November 1926

Knox C.J., Isaacs, Higgins, Powers and Rich JJ.

Bonney, for the appellant.

Flannery K.C. and S. A. Thompson, for the plaintiff respondent,

Knox C.J.

In this case I am of opinion that the decree should stand. The main question raised on the appeal is as to the meaning of sec. 4 (1) (b) of the Partition Act, which provides that in a suit for partition "if parties interested collectively to the extent of one moiety or upwards ... request the Court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the Court shall, unless it sees good reason to the contrary, order a sale of the property accordingly." In this case it is admitted that neither party desires a partition—that, in fact, partition of the property would be both inexpedient and impracticable. In these circumstances the plaintiff comes, in a suit which is a suit for partition under the Act, and says "I want a sale." The defendant says "I do not want a partition, but I do not want a sale at the present time because the property will probably realize more later on, and I oppose the sale." The question which arises on that position is whether, even assuming that the defendant makes out his allegation that it would be an inconvenient time for a sale, that would be an answer to the suit. So far as I can see, the object of the Act was to provide an alternative remedy to partition. Recognizing the absolute right of a tenant to partition, and seeing that it might be disastrous for all parties to have a partition, Parliament provided by sec. 4 (1) (a) that if any person interested requested a sale instead of a partition and if it appeared to the Court that a sale would be more beneficial than a partition the Court might order a sale accordingly. By sec. 4 (1) (b) it was provided that if parties interested to the extent of a moiety or upwards should request the Court to direct a sale instead of a division of the property, the Court should, unless it saw good reason to the contrary, order a sale accordingly. Another provision was made by sec. 4 (1) (c) for buying out the interest of a person who requested a sale. I think that it is clear that under sec. 4 (1) (b) what the Court has to consider is which is the better course for all parties between two alternatives, namely, is it better that there should be a partition or that there should be a sale, and the onus of showing that partition is better, where the owners of more than one half of the property desire a sale, is upon the person opposing a sale. In that view the decision of the learned Judge was clearly right.

The only other point raised by Mr. Bonney was as to costs. I think that his contention is answered by the Act, which provides by sec. 18 that the Court shall have a discretion as to costs. In the exercise of that discretion the learned Judge thought that the defendant should pay the costs of the issues of fact raised by him. For my own part I think that he exercised his discretion wisely. The appeal should be dismissed.

Isaacs J.

I agree that the appeal should be dismissed for the reasons which have been given by the Chief Justice, and I have nothing further to add.

Higgins J.

In concurring with the decision I desire to add that I regard a sale as an alternative to a partition and not to the status quo. Partition is a right, however inconvenient, unless the provisions of sec. 4 (1) are applicable, and subject to the modifications provided in the other sections of the Act. The case for the appellant has been argued very well by Mr. Bonney, but I see no escape from our conclusion.

Powers J.

I agree that the appeal should be dismissed.

Rich J.

I also agree, for the reasons given by the Chief Justice.

Appeal dismissed with costs.

Solicitors for the appellant, Robson & Cowlishaw.

Solicitors for the respondent John Bray, Norton Smith & Co.