Bradwell v. Scott

Bradwell v. Scott

The court held that s.6 does not make proof of entitlement to equitable relief a jurisdictional prerequisite; a co-owner holding one-half or more has the statutory right to request sale and the court must order sale unless it sees good reason to the contrary; the practical burden is on opponents to present evidence of such a reason and the chambers judge did not err in finding the Scotts failed to establish a good reason to refuse sale.

Citation
2000 BCCA 576
Parties
Respondent/plaintiff: David Bradwell; Respondent/plaintiff: Geraldine Bradwell; Appellant/defendant: Frederick Larson Scott; Appellant/defendant: Wilma Jean Scott
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
27 October 2000
Procedural Posture
Partition of Property; Appeal / Appeal to Court of Appeal (judgment)
Outcome
Appeal dismissed
Legal Topics
Partition, Sale of Co Owned Property, Clean Hands Doctrine, Burden of Proof, Judicial Discretion, Referral to Trial
Source Language
English
Property Law Equity Civil Procedure Partition Sale of Co Owned Property Clean Hands Doctrine Burden of Proof Judicial Discretion +1 more

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Parties

David Bradwell

Respondent/plaintiff

Geraldine Bradwell

Respondent/plaintiff

Frederick Larson Scott

Appellant/defendant

Wilma Jean Scott

Appellant/defendant

Procedural Posture

Partition of Property; Appeal / Appeal to Court of Appeal (judgment)

Legal Issues

  1. 1 Whether s.6 of the Partition of Property Act makes entitlement to equitable relief a jurisdictional precondition
  2. 2 Proper allocation of burden of proof under s.6
  3. 3 Proper test for "good reason to the contrary" to refuse sale

Ratio Decidendi

The court held that s.6 does not make proof of entitlement to equitable relief a jurisdictional prerequisite; a co-owner holding one-half or more has the statutory right to request sale and the court must order sale unless it sees good reason to the contrary; the practical burden is on opponents to present evidence of such a reason and the chambers judge did not err in finding the Scotts failed to establish a good reason to refuse sale.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Costs to respondents