Petersen v Banuve [2005] FJHC 138; HBC0278j.2004s (16 June 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 278 OF 2004

Between:

LINDA JIMIMA PETERSEN
Plaintiff

and

TEVITA KETENUKU BANUVE
Defendant

Mr. W. Clarke for the Plaintiff
Mr. S. Matawalu for the Defendant

JUDGMENT

This is the plaintiff’s application by summons dated 20 July 2004 supported by an affidavit seeking the following orders:

(a) an order that the Defendant purchase the Plaintiff’s one divided half share in the property situated at Lot 90 Tamavua Subdivision, Suva, more particularly described as the land comprised in Native Lease No. 13826 being Lot 90 Tamavua Subdivision with dwelling thereon Plan R. 1907, at a price and terms and conditions to be mutually agreed upon by the Plaintiff and the Defendant;

(b) in the alternative, the sale of the said property to a third party and the manner of sale to be directed by this Honourable Court.

The plaintiff has filed an affidavit in support of the application.

The application is made under section 119 of the Property Law Act Cap. 130 (the ‘Act’).

In summary the application is for:

(a) an order that the defendant buys out her half share in the property (and the proceeds thereof) at a price to be mutually agreed by the parties; or

(b) in the alternative, an order for the sale of the entire property to a third party and the division of the proceeds.

Plaintiff’s contention

The counsel for the plaintiff submits that the plaintiff and defendant together purchased the property and it is registered in their names as joint tenants.

The plaintiff says that she used her FNPF funds to contribute to the purchase of the property and in 2001 guaranteed a loan taken out by the defendant for the renovation to the property and has been jointly responsible for its maintenance and upkeep.

They mortgaged the property to the Fiji Development Bank in 1993. The property was bought so that they both have an ‘equal equity’ and that its maintenance and upkeep would be shared equally between them.

She paid $15,000.00 for the purchase of the property. She made other payments as set out in her supplementary affidavit in item 7.

In December 2003 she caused a Certificate of Valuation to be prepared by Rolle Associates. The property is valued at $250,000.00.

On 19 December 2003 she moved out of the property owing to a breakdown in their relationship and now wishes to conclude this separation and be paid her undivided half share of the property. The defendant refuses to purchase and so she comes to Court for relief. She does not wish to continue owning the property with the defendant

Defendant’s contention

The property in question is the one stated in the summons referred to hereabove.

There is no dispute that the parties have lived in de facto relationship since 1992 and have 2 male children out of the union aged 10 and 14 years respectively.

The other fact which is not in dispute is that the plaintiff marched out of the property in December 2003. She took the 2 boys with her against the wishes and advice of the defendant. She says that this was caused by the “breakdown” in their relationship. She does not wish to own the property with the defendant.

Counsel for the defendant submits that ‘an interest as a joint tenant does not necessarily equate to an equal share of the total estate. Having a premonition of this she has taken a lot of trouble in demonstrating her “contribution” in maintaining the property.’

The defendant denies that she had made any contribution whatsoever in the purchase of the property except for part of the deposit for which she has been repaid.

Counsel submits that the defendant is agreeable to the sale of the property under s119(3) of the Act rather than under s119(1). To that end the defendant undertakes to purchase her share provided that a valuation of her contribution to the property is made bearing in mind all the circumstances of the case.

Consideration of the issue

The application for the sale of the property is made by the plaintiff under s119(1) of the Property Law Act Cap. 13 of (the ‘Act’).

The said s119 provides:

“119. (1) Where in an action for partition the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the land to which the action relates requests 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.

(2) The court may, if it thinks fit, on the request of any party interested, and notwithstanding the dissent or disability of any other party, direct a sale in any case where it appears to the court that, by reason of the nature of the land, or of the number of parties interested or presumptively interested therein, or of the absence or disability of any of those parties, or of any other circumstances, a sale of the land would be for the benefit of the parties interested.

(3) The court may also, if it thinks fit, on the request of any party interested, direct that the land be sold, unless the other parties interested, or some of them, undertake to purchase the share of the party requesting a sale, and, on such an undertaking being given, may direct a valuation of the share of the party requesting a sale.

(4) On directing any such sale or valuation to be made, the court may give also all necessary or proper consequential directions.

(5) Any person may maintain such action as aforesaid against anyone or more of the parties interested without serving the other or others, and it shall not be competent to any defendant in the action to object for want of parties; and at the hearing of the cause the court may direct such inquiries as to the nature of the land and the persons interested therein, and other matters, as it thinks necessary or proper, with a view to an order for partition or sale being made on further considerations.

Provided that all persons who, if this Act had not been enacted, would have been necessary parties to the action shall be served with notice of the decree or order on the hearing, and, after that notice, shall be bound by the proceedings as if they had originally been parties to the action, and shall be deemed parties to the action, and all such persons may have liberty to attend the proceedings, and any such person may, within a time limited by rules of court, apply to the court to add to the decree or order.

(6) On any sale under the provisions of this section, the court may allow any of the parties interested in the land to bid at the sale, on such terms as the court deems reasonable as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part thereof instead of paying the same, or as to any other matters.” (underlining mine for emphasis)

What the Court’s powers are is quite clear from the said section. I had previously considered at some length the law on the subject pertaining to s119 in the case of Thomas (below) and I refer to my views on the subject in that case and would not want to repeat them here.

In the present case the application is under s119(1) of the Act whereas the defendant is agreeable for sale under s119(3).

The plaintiff’s counsel submits that under s119(1) of the Act the Court is empowered to order sale of the subject property [Emma Thomas v The Estate of Mrs. Eliza and Mrs. Tess Goulding 136/94s-12.12.96 Pathik J].

It is the counsel’s submission that based on the authorities referred to by him the Court looks at the intention of the parties at the time of purchase of the property in deciding on the share of the sale which a party should get.

Here he says that the intention was to own the property in equal shares and that can be the only explanation for their conduct and the manner in which they contributed to the property. Mr. Clarke says that as legal owner the plaintiff is entitled to an equal share.

He submits that the plaintiff is entitled to seek and obtain orders from this Court for the sale of the property and for the proceeds of sale less expenses, be divided equally between the plaintiff and the defendant.

The defendant on the other hand wants an order under s119(3) bearing in mind the plaintiff’s minimal contribution towards the purchase of the property.

As I said in Thomas (supra) this is not a partition action and hence the application does not come under s119(1) which requires that upon an order for sale the applicant’s interest has to be “one moiety” before that can be done. A “moiety” is defined as “a half”.

In this case there is disagreement as to whether the plaintiff/applicant is entitled to a half share although the title to the property is held by the parties as joint tenants.

In any consideration of the issue such as the present the Court acts on evidence and reaches a decision based on the evidence presented to it.

On the evidence before me I agree with Mr. Matawalu for the defendant that the order for sale ought to be under s119(3). I therefore hold that this subsection is applicable to the defendant in preference to 119(1).

In coming to the conclusion to which I have come I have considered it pertinent and relevant the treatment of the subject by Brooke J.A. in ‘Re Dibattista et al. and Meneiola et. al. (Ontario Court of Appeal 74 D.L.R. (4th) p.569). There he refers to Cook v Johnston (1970) 2 O.R. 1 (H.C.J.) where Grant J. considered the question of when and in what circumstances the court may order a sale. I quote below what Grant J said in his judgment at pp. 1-2:

In Morris v. Morris (1917), 12 O.W.N. 80 Middleton, J., in dealing with a similar matter stated at p.81:

“Sale as an alternative for partition is quite appropriate when a partition cannot be made.”

In Gilbert v. Smith [1879] UKLawRpCh 35; (1879), 11 Ch.D. 78, Jessel, M.R., at p.81 stated:

“The meaning of the Legislature was that when you see that the property is of such a character that it cannot be reasonably partitioned, then you are to take it as more beneficial to sell it and divide the money amongst the parties.”

In Lalor v. Lalor (1883), 9 P.R. (Ont.) 455, Proudfoot, J., who was deciding whether partition or sale should be ordered, stated:

“I do not think any party has a right to insist on a sale; and it will not necessarily be ordered, unless the Court thinks it more advantageous for the parties interested.”

In Ontario Power Co. v. Whattler (1904), 7 O.L.R. 198, Meredith C.J. reviewed the legislation in the Province giving jurisdiction to the Court to order a sale instead of partition. In reference to the form of such remedies then adopted by the Consolidated Rules, he stated at p.203:

“That form must be read in the light of the legislation by which jurisdiction has been conferred on the Court to order a sale instead of a partition; and the provision as to proceedings being taken for partition or sale is, I think a compendious mode of saying that proceedings are to be taken to partition unless it appears “that partition cannot be made without prejudice to the owners of, or parties interested in, the estate,” but that if that is made to appear proceedings are then to be taken for the sale of the lands.”

Orders

To conclude, on the facts and circumstances of this case and in the light of the authorities referred to hereabove, for the above reasons, under s119(3) I direct and order that the property be sold to the defendant, as he has proposed to purchase and further direct as follows:-

1. That within 28 days from the date of this judgment the Plaintiff appoint a valuer to carry out a valuation of the property. The valuer to be acceptable to the defendant’s solicitors unless the parties agree to the valuation already obtained by the plaintiff.
   
2. Upon receipt of the Valuation Report the parties to agree to a selling price which is not to be below the valuation amounts unless agreed.
   
3. In the event the parties not being able to agree to the selling price then an arbitrator agreeable to parties be appointed within 14 days of the disagreement. The arbitrator’s decision shall be final.
   
4. Once the selling price is agreed all necessary documents including document of transfer shall forthwith be prepared by the Plaintiff’s solicitors who shall forward same to defendant’s solicitors who shall obtain their client’s execution thereto and hold same until the purchaser of property is in a position to settle. All costs of transfer shall be borne by the Plaintiff.
   
5. Forthwith upon settlement the defendant’s solicitors shall pay into Court the settlement moneys and furnish an account of disbursements and costs incurred by the Plaintiff in the sale of the property.
   
6. Within one month after payment into Court of the said moneys, each party is to furnish to the other and file in Court his or her claim in respect of the sale moneys supported by documentary evidence of payments alleged to have been made or expenses incurred in the purchase of the property.
   
7. Liberty to parties to apply generally.
   

Each party to bear his/her own costs of this application.

D. Pathik
Judge

At Suva
16 June 2005