Bray v Bray [1926] HCA 40

Bray v Bray [1926] HCA 40

Where, in a suit for partition, partition is not sought or is impracticable, and a party with a moiety interest requests sale, the court should grant a sale unless good reason is shown to the contrary; and discretion as to costs is properly exercised against a defendant who unsuccessfully raises factual issues against a sale.

Parties
Plaintiff: John Bray; Defendant: James Bray; Defendant: Permanent Trustee Co. of New South Wales
Jurisdiction
Australia
Judgment Date
08 November 1926
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales
Outcome
appeal dismissed with costs
Legal Topics
Partition, Sale of Co Owned Land, Costs Discretion
Property Law Partition Sale of Co Owned Land Costs Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

John Bray

Plaintiff

James Bray

Defendant

Permanent Trustee Co. of New South Wales

Defendant

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Whether a tenant in common is entitled to an order for sale under s 4(1)(b) of the Partition Act 1900 (NSW) where the other co-owner opposes but does not seek partition
  2. 2 Whether the defendant should be ordered to pay the plaintiff’s additional costs arising from factual issues raised by the defendant

Ratio Decidendi

Where, in a suit for partition, partition is not sought or is impracticable, and a party with a moiety interest requests sale, the court should grant a sale unless good reason is shown to the contrary; and discretion as to costs is properly exercised against a defendant who unsuccessfully raises factual issues against a sale.

Court Disposition

appeal dismissed with costs

Orders

  • Property to be sold out of Court
  • Permanent Trustee Co. of New South Wales to have conduct of sale