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co-ownership disputes, Schemes and Mind Maps of Land Law

Leeds Beckett University (LBU)Land Law

A. CO-OWNERSHIP DISPUTES OUTSIDE THE PROPERTY LAW ACT 1958. (“PLA”) PART IV. 2. The origin of this paper is the author's Law Institute ...

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CO-OWNERSHIP DISPUTES

PHILIP H. BARTON

BARRISTER

FOLEYS LIST

OWEN DIXON CHAMBERS WEST

INTRODUCTION

1. This is the paper that accompanying my Foleys CPD podcast on 28 May 2020 on co-

ownership disputes. I however include reference to cases decided up to the date of this

paper, ie 2 July 2020, and also add several earlier cases. This paper covers -

A. Co-ownership disputes outside the Property Law Act 1958 (“PLA”) Part IV – paras.

2 - 9

B. Central Concepts under the PLA Part IV – paras. 10 - 15

C. The extent of VCAT’s jurisdiction – paras. 16 - 17

D. Grounds for refusing an order under Part IV – General – paras. 18 - 25

E. Grounds for refusing an order under Part IV – Express Trust para. 26

F. Grounds for refusing an order under Part IV – Resulting trust – paras. 27 - 31

G. Grounds for refusing an order under Part IV – Common intention constructive trust

– paras. 32 - 34

H. Grounds for refusing an order under Part IV – Trust based on Muschinski v Dodds

– paras. 35 - 44

I. Sale and/or Physical Division – General – paras. 45 - 49

J. Physical Division – paras. 50 - 52

K. Accounting, Compensation, Reimbursement and Adjustment – General – paras. 53

- 57

L. Adjustment of Interests – paras. 58 - 63

M. Compensation and Reimbursement – paras. 64 - 66

N. Improvement and Maintenance – paras. 67 - 69

O. Rent – paras. 70 - 74

P. Supreme and County Court Jurisdiction – paras. 75 - 77

References in this Paper to section numbers are to those in the PLA unless otherwise

stated.

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CO-OWNERSHIP DISPUTES

BY PHILIP H. BARTON BARRISTER FOLEYS LIST OWEN DIXON CHAMBERS WEST INTRODUCTION

This is the paper that accompanying my Foleys CPD podcast on 28 May 2020 on co- ownership disputes. I however include reference to cases decided up to the date of this paper, ie 2 July 2020 , and also add several earlier cases. This paper covers - A. Co-ownership disputes outside the Property Law Act 1958 (“PLA”) Part IV – paras. 2 - 9 B. Central Concepts under the PLA Part IV – paras. 10 - 15 C. The extent of VCAT’s jurisdiction – paras. 16 - 17 D. Grounds for refusing an order under Part IV – General – paras. 18 - 25 E. Grounds for refusing an order under Part IV – Express Trust para. 26 F. Grounds for refusing an order under Part IV – Resulting trust – paras. 27 - 31 G. Grounds for refusing an order under Part IV – Common intention constructive trust - paras. 32 - 34 H. Grounds for refusing an order under Part IV – Trust based on Muschinski v Dodds - paras. 35 - 44 I. Sale and/or Physical Division – General – paras. 45 - 49 J. Physical Division – paras. 50 - 52 K. Accounting, Compensation, Reimbursement and Adjustment – General – paras. 53 - 57 L. Adjustment of Interests – paras. 58 - 63 M. Compensation and Reimbursement – paras. 64 - 66 N. Improvement and Maintenance – paras. 67 - 69 O. Rent – paras. 70 - 74 P. Supreme and County Court Jurisdiction – paras. 75 - 77 References in this Paper to section numbers are to those in the PLA unless otherwise stated.

A. CO-OWNERSHIP DISPUTES OUTSIDE THE PROPERTY LAW ACT 1958

(“PLA”) PART IV

The origin of this paper is the author’s Law Institute Journal Article “Co-ownership Disputes” (August 2018 LIJ 26) which dealt solely with Part IV of the PLA which lawyers have traditionally referred to as “partition”. However it is opportune at the outset briefly to mention several recent cases on co-ownership outside Part IV. Severance of joint tenancy
Section 223 provides that nothing in Part IV affects or prevents the severing of a joint tenancy by other legal means. In Hrycenko v Hrycenko & Hrycenko [2016] VSC 247 (note that on AustLII the name of the plaintiff is misspelt as Hycenko ) the plaintiff (Nicholas) alleged that: in late 2000 or 2001 his father (George) in the presence of Nicholas’ mother said in effect that the remainder of the family properties would go to his living sons (Nicholas and Victor); shortly afterwards the parents said they wanted to move to a smaller house, which Nicholas then located, the parents paying the purchase price and becoming registered as joint tenants; subsequently Nicholas told his parents that he and Victor had agreed to renovate the property, that this would involve a lot of work, and George replied in effect that the house would be his sons’; and consequent upon these representations he renovated and regularly maintained the home.
Nicholas asserted that the joint tenancy was severed in equity when these representations were made. Sifris J granted summary judgment to the defendant, on the following grounds –
1. The methods of severing a joint tenancy were – (a) an act of a joint tenant operating upon his or her own share, ie disposal of that person’s interest; (b) agreement, which need not be specifically enforceable or even binding as a contract at law, and which could not be defeated by subsequent repudiation of

intention to sever the joint tenancy. This did not amount to a suggestion that with immediate effect the unity of estate between the parents would cease.

In Re Wilson [2019] VSC 211 Leonard and Austral Wilson were joint proprietors of interests in various pieces of land. In 1998 Austral, who was five years older than Leonard and so anticipated to die first, appointed him as her attorney pursuant to an enduring power of attorney. In 2000 Austral was diagnosed as suffering from dementia and so lost legal capacity. In 2008 Leonard executed instruments of transfer in relation to the properties. In each case: (a) the transferor was expressed to be “Leonard Charles Wilson and Austral Jean Wilson”; (b) the transferee was expressed to be “Leonard Charles Wilson and Austral Jean Wilson … as Tenants in Common in equal shares”; (c) the consideration was expressed to be “Love and Affection”; and (d) the document was expressed to be executed by Leonard in his personal capacity, and as attorney for Austral pursuant to the enduring power of attorney. Leonard died in 2011. Austral died in 2016.
Derham AsJ held – (a) the execution of the transfers demonstrated a mutual intention to sever the joint tenancies in equity. Equity favoured a tenancy in common, and (quoting authority) “requires little by way of evidence to show an intention that joint tenants are to hold as tenants in common”. That evidence arose from the execution of the severance transfers. Where the relevant transactions took place between the registered proprietors themselves, and no third parties were involved, equity favoured a tenancy in common if intention to sever the joint tenancy can be shown; (b) it was within Leonard’s power and authority to have the transfers registered, thus severing the joint tenancies at law; (c) Leonard acted lawfully and within the scope of his authority as attorney. The transfers should be registered so as to sever the joint tenancies at law. Adverse possession between co-owners

A recent decision of Croft J. re-iterates that one co-owner can lose their interest to another by adverse possession: Fourniotis v Vallianatos [2018] VSC 369. Section 14(4) of the Limitation of Actions Act provides: “When any one or more of several persons entitled to any land or rent as joint tenants or tenants in common have been in possession or receipt of the entirety or more than his or their undivided share or shares of such land or of the profits thereof or of such rent for his or their own benefit or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last-mentioned person or persons or any of them but shall be deemed adverse possession of the land”.
The facts were –
- In 1970 Andreas Vallianatos purchased a suburban property improved by an old house, which he demolished, constructing a block of flats. He also transferred the land to himself (two sixths) and his wife and three daughters (one sixth each), registered in 1971, one daughter being the plaintiff then aged 13;
- She remained so registered. Her brother the defendant gradually acquired the other shares by transfer. Neither lived there;
- Andreas collected the whole rent and treated it as his own money until his death in 1994, after which the defendant did the same other than also partially applying it for his mother’s benefit until her death in 2014. The plaintiff received no rent and its receipt by her father and brother was not subject to her consent: she knew she was not receiving any rent but did nothing about it.
Croft J. held - (a) Section 14(4) did not require continuous letting of all parts of the subject property: the rent flowed from the property continually notwithstanding some unit vacancy. The manner in which the rent flowed was irrelevant as long as it was within the control of the “excluding” co-owner(s) and no rent flowed to the “excluded” co- owner [109]; (b) Under s. 14(4) it was unnecessary to show an intention to possess the land in a case of adverse possession between co-owners, at least when the deeming occured by the receipt by one co-owner of an excess share of profits or rent. Unlike the ordinary case of adverse possession by someone with no interest in the land, or even a claim between co-owners based on possession, in the case of a claim under s. 14(4) there was no need to prove factual possession or the animus possidendi [93];

No particular matters are specified as requiring proof for the grant of any form of relief, nor are any particular matters nominated as defences ( Moll v Noblett [2009] VCAT 353 at [39]). Part IV has been said to be part of general legal policy favouring alienability, embodying a principle of, in the words of Deputy President Macnamara, “no fault divorce” for co-ownership and accordingly an applicant does not have to prove unsatisfactory behaviour by co-owners ( Moll at [40]).
As a claim under Part IV is statutory not equitable it cannot be defeated by the equitable defence of laches: Stewart v Owen [2019] VCAT 140 at [108] (appeal allowed by not on this point). C. THE EXTENT OF VCAT’S JURISDICTION Bankruptcy
Where one of two co-owners becomes bankrupt, and accordingly it is arguable that his interest in land vested in his trustee, VCAT has jurisdiction and is not inpermissibly exercising Federal jurisdiction in bankruptcy: Pascoe v Gianello [2016] VCAT 1903. However, a trustee in bankruptcy is able to apply to the Federal Court for an order under Part IV at the point that the bankrupt’s property vests in the trustee in equity, even if legal title has not yet vested: Scott, in the matter of Le [2019] FCA 1661. No jurisdiction
VCAT’s jurisdiction does not cover claims – (a) For damages unrelated to land ( Garnett v Jessop [2012] VCAT 156 at [21]). Similarly Riffat v Riffat [2016] VCAT 1398 - no jurisdiction where the applicant was seeking damages, being the cost of a loan required because the she was involved in other court proceedings with family members. Conversely in Morey v Auslong Development Management Pty Ltd [2020] VCAT 51 VCAT allowed each co-owner to apply under s. 233 for damages including for fall in value alleged to have been suffered through delay in being able to sell by breaches by the other co- owner of a joint venture agreement. (b) Arising from a fraudulent transfer: Trani v Trani [2019] VSC 2 (Daly AsJ) [2019] VSC 294 (Kaye JA). The plaintiffs and the first defendants were co-owners of land.

The second defendant was a company controlled by the first defendant. The third defendant was a conveyancer engaged by the first defendant. The plaintiffs sued the defendants in the Supreme Court alleging that the first defendant had sold the land to a third party without their consent and by forging their signatures, that the second defendant was liable for knowing receipt of the proceeds of sale, and the third defendant was liable for misrepresentations to the Registrar of Titles. It was argued that the plaintiffs were in fact seeking an order that the first and second defendants account for the receipt by them of more than their just and proportionate share of co-owned property, and therefore the proper forum was VCAT. This argument failed. Kaye JA observed that the question was whether the proceeding constituted an “application” under Part IV. It was not: in particular not an application, pursuant to s 234(1) of the Act, for an “accounting” in accordance with s 28A. Conversely in Li v So [2017] VCAT 31 an application to have two related VCAT proceedings under Part IV concerning a piece of land referred to the Supreme Court was dismissed. The applicant for referral had commenced a Supreme Court proceeding alleging that the other co-owner had breached fiduciary obligations by a signature forgery to obtain a loan using the property as security – if established the Tribunal could give effect to this allegation under s. 228 as part of a just and fair division of proceeds of sale; (c) Probate. VCAT does not before probate or letters of administration have jurisdiction over a proceeding by a co-owner against persons involved in the estate of the other co-owner who is deceased: Noble v Noble [2020] VCAT 567. It also does not have jurisdiction concerning an executor’s performance. In Bills- Thompson v Bills-Thompson [2017] VCAT 341 the applicant and respondent were executors of their late father’s estate under which they became tenants in common of a piece of land. One brother commenced an application under Part IV. Consent orders for sale were made appointing him trustee of the property for sale and directing how the proceeds of sale be distributed. His brother claimed relief for unreasonable delay in distributing the proceeds of sale. VCAT held that it was not empowered to make orders directing executors and trustees of testamentary trusts on how to exercise their duties.

an order for sale was rejected. The first respondent’s actions showed a clear intention not to be bound by the Terms.

A further inconsistency arises where there is an existing contract of sale ( Yeo at [24]).
Another inconsistency may arise from an estoppel ( Yeo at [22]). This argument failed on the facts in Koroneos v Koroneos [2016] VCAT 461 at [74]-[80]. VCAT rejected an argument that one co-owner was estopped from seeking orders for sale under Part IV by representation to the other co-owner that he would be entitled to live exclusively at the property for life: no such representation was established.
Also inconsistent with an order for sale is where the transaction by which the applicant obtained an interest in the land is liable to be set aside. Thus in Grech v Richardson [2019] VCAT 363 Member Edquist dismissed an application for sale by a co-owner, who had made no contribution to the purchase price and had obtained her interest in the land by gift from the other co-owner in contemplation of marriage to him which had never occurred, and moreover had exercised undue influence over him.
However, not inconsistent with a proprietary right or contractual or fiduciary obligation are: (a) a mortgage, charge or other form of security ( Yeo at [24]); (b) arguably a contractual provision requiring that the interest of one tenant in common be first offered to the other ( Bluestone Park Pty Ltd v Kevin Hunt Property Pty Ltd [2015] VCAT 1813); (c) depending on its terms, a joint venture agreement ( Morey v Auslong Development Management Pty Ltd [2020] VCAT 51 at [90]. E. GROUNDS FOR REFUSING AN ORDER UNDER PART IV – EXPRESS TRUST
A proprietary interest commonly raised as inconsistent with sale or division is that the applicant holds his/her interest on trust for the respondent. The simplest example is an express trust, not established in Donkin v Donkin [2019] VCAT 1057, where the respondent unsuccessfully argued that the land was held on trust for him by reason of the contents of a letter from the applicant to the applicant’s solicitors.

F. GROUNDS FOR REFUSING AN ORDER UNDER PART IV – RESULTING

TRUST

In Stewart v Owen [2019] VCAT 140 Senior Member Vassie stated basic principles thus (although this form of trust was not established in that case) - (a) Where two persons contribute towards the cost of acquiring land, and their relationship is not one that creates a presumption of advancement, there is instead a presumption that they hold the land in trust for themselves as tenants in common in the proportions that they contributed. The presumption is rebutted by evidence that the intention of the two persons was otherwise; (b) Where those persons enter into a mortgage to secure repayment of a loan that is applied to fund the acquisition of the land, they are regarded as having contributed to the acquisition costs one half each of that loan. However, payment of instalments in reduction of the mortgage debt are not regarded as direct contributions to the purchase price; (c) For the purpose of calculation of the acquisition costs one may include incidental costs such as stamp duty and disbursements. Resulting trust established.
Two illustrative cases of resulting trusts established at VCAT, albeit not in the context of blocking a sale, are Michell v Winch [2012] VCAT 1524 and Sherwood v Sherwood [2013] VCAT 1746. In Michell v Winch –
- Mr and Mrs Johnson and their daughter Mrs Winch and her spouse Mr Winch purchased vacant land. The Johnsons paid the full amount but the couples became registered proprietors in equal shares. The parties intended that each couple own half, because a house was to be built and the Winches were to service the mortgage;
- Subsequently the Johnsons transferred their interest in the land to the Winches without consideration and the couples continued to intend to own half each;
- The Winches sold the property, used the proceeds to purchase two further properties of which they became registered proprietors, but the parties continued to intend half ownership per couple;
- The interest of the Johnsons in one property was in question, VCAT finding that it was held on a resulting trust in favour of Mrs Johnson (Mr Johnson having died) she having a 38% share (subject to further evidence as to minor adjustment).

(iii) it would be a fraud upon the claimant for the other party to assert that the claimant had no beneficial interest. : Stewart v Owen [2019] VCAT 140 at [89].

Such trusts were not established in –
- Stewart v Owen – parties’ intention had changed from time to time;
- Krsteski v Jovanoski – lack of evidence;
- Sherwood v Sherwood [2013] VCAT 1746 – no agreement as to proportion of loan repayments or beneficial interest.
This form of trust has been overtaken in popularity by the form of trust dealt with under the next heading, which arises on similar facts and is easier to establish. H. GROUNDS FOR REFUSING AN ORDER UNDER PART IV – TRUST BASED ON MUSCHINSKI v DODDS
Muschinski v Dodds (1984) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137, being “two landmark High Court decisions on constructive trusts in the mid- 1980’s” ( Stewart v Owen [2019] VCAT 140 at [91]), articulated the law on joint endeavour constructive trusts. In the words of McMillan J in Zekry v Zekry [2020] VSC 221 at [88] - “A joint endeavour constructive trust will be ‘imposed regardless of the actual or presumed intention to create a trust’. In Australian Building & Technical Solutions Pty Ltd v Boumelhem , Ward J summarised the proper approach as follows: First, it is necessary that there be both a joint relationship or endeavour, in which expenditure is shared for the common benefit in the course of and for the purposes of which an asset is acquired. ... Secondly, the substratum of that joint relationship or endeavour, must have been removed or the joint endeavour prematurely terminated ‘without attributable blame’. Thirdly, there must be the requisite element of unconscionability — it would be unconscionable for the benefit of those monetary and non-monetary contributions to be retained by the other party to the joint endeavour.” Trust based on Muschinski v Dodds established

The first sustained exposition of the principles of Muschinski v Dodds blocking an application under Part IV was Lyle v Lyle & Ors [2011] VCAT 323 (Deputy President Macnamara). The facts were –
- Arthur and Janet Lyle had six children. They decided to sell land in Melbourne to fund erection of a house and other accommodation on land owned by Arthur at Grantville at which they would live;
- In the late 1990s they agreed to transfer and subsequently transferred 13 of a total of 17 parts or shares (namely 6.5 ha.) of the Grantville land (by oversight the transfer did not affect both titles but this did not affect the outcome) to their children as tenants in common, and they all entered into an agreement whereby in substance any child wishing to sell had first to offer that share to the other children. The agreement showed the parents as divesting themselves of part of their interest in the land - the existence of a life interest over the divested part would have thwarted their attempt to obtain the age pension which they required for retirement income. No consideration was paid. At the “signing ceremony” a family member said “of course we would never sell” and everyone appeared even by silence to agree with this arrangement;
- The parents spent approximately $400,000 on a house and granny flat at Grantville, moved in in 2000, and Arthur died in 2001.
One child sought relief under Part IV. Deputy President Macnamara dismissed the application. He found that there was a joint endeavour of the Muschinski v Dodds type to provide for the retirement of the parents in the family which had failed without blame. The applicant knew that her parents were disposing of their other assets with a view to spending them on the property. It would be unconscionable for the property now to be sold. Accordingly a constructive trust existed giving Janet an entitlement to reside at the property for life.
In Trakas v Aravopoulos [2016] VCAT 592 –
- The applicant became registered as proprietor of a third share in a property. The applicant and first respondent then cohabited there for six months, after which the relationship broke down and the applicant vacated;
- The applicant subsequently applied under Part IV for a sale;

there forever; within months of cohabitation their relationship failed without blame; it was not his intention that she should continue to enjoy the benefit of half ownership of the property once the relationship failed. It was accordingly unconscionable for her to continue to retain the benefit of her half interest in the property. Trust based on Muschinski v Dodds not established

In Sherwood v Sherwood [2013] VCAT 1746 a brother and sister who were co-owners were held to hold the equitable estate in proportions favouring the brother (para. 29 above). He also argued for a Muschinski v Dodds constructive trust, the alleged joint endeavor being to purchase the property as a residence for both failing because they parties could not amicly co-habit. VCAT however found merely a joint intention to purchase a property as an investment, notwithstanding that the parties intended to live there before realisation: the fact that they now desired sale or a buy out did not entail failure of a joint venture.
In Gates v Robinson [2018] VCAT 40 –
- Mr Gates and his cousin Ms Robinson purchased a residential property with a view to holding it as investment, renovating it and renting it out. They had a common intention, at the time of acquisition, that their interests in the land should be equal. They agreed to bear all expenses equally. They became registered as joint owners in equal shares;
- However, soon after purchase they changed their plans to Ms Robinson occupying the house herself, which she always thereafter did, making all subsequent payments related to the property save for a payment by Mr Gates for floor polishing and him contributing until 2008 to mortgage loan repayments. Her claim for Muschinski v Dodds trust failed because: (a) the joint endeavour of holding the land as an investment property and renting it out, did not break down but because of a change of minds did not begin; (b) the circumstances in which Ms Robinson has made greater contributions did not involve any conduct making it unconscionable for Mr Gates to retain a half interest in the land, in particular – (i) he only stopped making mortgage repayments because she wanted to buy him out and asked him to stop paying;

(ii) with one exception all her work and payments for it were on her own initiative without consultation. The exception was where he was consulted and did not consent.

In Stewart v Owen [2020] VSC 175 Forbes J overturned VCAT’s decision that a Muschinski v Dodds trust existed. Senior Member Vassie had found: that a joint endeavour existed in a couple’s acquisition of an investment property; that it ended without blame when Ms Owen, with Mr Stewart’s agreement, took up occupation of the property as a home for herself and their daughter; each made financial contributions to the joint endeavour; it was unconscionable for him to assert that he had a one-third beneficial interest in the property in substance because he caused or allowed her to act in a manner giving her reason to be reassured that she had the sole beneficial interest in the property. Forbes J found that it was not unconscionable for Mr Stewart to permit Ms Owen to treat the property as her own during the period of tenancy and continuing to do so once she commenced living there, nor was he unconscionably enjoying the benefit of contributions made by Ms Owen while refusing to recognise her entitlement such that a constructive trust should be imposed.
In Bozdogan v Concept Corp Pty Ltd [2020] VCAT 643 no unconscionability was established in the situation where the title was as the parties intended it to be. I. SALE AND/OR PHYSICAL DIVISION – GENERAL
VCAT may make any order to ensure a just and fair sale or division and without limiting its powers may order sale and the division of proceeds (s. 228(2)(a)) and/or physical division (s. 228(2)(b) and (c)). If VCAT determines to make an order under s. 228(2), the order must be for sale, by a choice of methods (s. 232), unless it considers an order for sale and physical division or for physical division alone more just and fair (s. 229(1)). Without limiting what it may consider, VCAT, in determining justness and fairness (but not whether relief should be given at all – merely what form of relief should be granted: Moll v Noblett & Ors [2009] VCAT 353 at [36]) must take into account factors referred to in s. 229(2)(a) – (c) which are referred to below in the discussion of Keam v Mason & Ors. Justness and fairness is not determined by applying instinctive justice but in a manner best according with the legitimate rights and interests of each party: Edelsten v

Private sale

In Bornyan v Bornyan [2014] VCAT 1103 an order of sale was made despite evidence that it would cause substantial loss to a company because of cost of re-locating its business, difficulty of finding suitable alternate premises and potential loss of goodwill. The property was ordered to be sold privately at a price fixed by valuation, with, however, an order that any of the parties could on sufficient evidence of adequate finance purchase at or above the reserve, failing which it would be auctioned. Sale v Physical Division
The main example of a dispute between two groups of co-owners – one favouring sale, the other physical division – is Keam v Mason & Ors [2010] VCAT 242. The facts were –
- 11 ha. at San Remo, with old deteriorating farm buildings, had been farmed until the early 1980s but had not been significantly farmed since. One respondent lived there and carried out small scale sheep grazing. The land was surrounded by residential development;
- The land was owned as a whole by the co-owners as tenants in common in various fractional interests. Those with approximately 75% of the fractional interests wanted the sale and the rest desired physical division into two lots. The Tribunal stated that to find for the proposed physical division into two lots it must be convinced on the balance of probabilities that the co-owners were assured of getting the value of their fractional interest, as would occur on a sale and distribution of the proceeds in proportion to the fractional interests. The Tribunal dealt with the factors referred to in s. 229(2)(a) – (c) as follows
  - Use – the use as a residence for a respondent and minor grazing was far below the highest and best use of residential subdivision;
  - whether physical division is possible and practicable. The two lot subdivision was possible. As to practicablity the Tribunal must find on the balance of probabilities that this two lot plan would accurately reflect in value the fractional interests of all co-owners. There was insufficient evidence on: any town planning permit and conditions; unquantified contingencies and how they could be dealt with; the costs and the returns from sale of the two lots;
  - any particular links with or attachment to the land, including whether it is unique

or has a special value to any co-owner. “Special value” was held to have the same meaning as in the law of compulsory acquisition, ie (in summary) value to the owner over and above its market value. Links and attachment included length of attachment and the intensity of the sentimental attachment. Evidence of this was lacking here. The land was accordingly ordered to be sold. J. PHYSICAL DIVISION

Physical division may be into parcels or shares differing from original entitlements, with compensation (s. 230). Because of the preference in s. 229(1) for sale over physical division, physical division only tends to occur when all parties desire it – in that case it is more just and fair that any relief be by way of physical division: Moll v Noblett & Ors [2009] VCAT 353. In that case two co-owned Crown allotments in bushland, one of which was improved by a bunkhouse, were physically divided by drawing of lots or toss of a coin with financial adjustment to compensate one co-owner for loss of the bunk house - Deputy President Macnamara commented that it was difficult to believe that there is a strong sentimental attachment to one part of a relatively small and unsubdivided piece of land over another part of the same land.
In Edelsten v Burkinshaw & Ors [2011] VSC 362 all parties desired to continue to live on and farm the properties but could not agree on the division. Kaye J. ordered that each party obtain the lot on which each resided and that a third lot go to the defendants with compensation to the plaintiff because the defendants were better equipped to farm it.
Physical division will not be ordered if inconsistent with an agreement between the parties: Morey v Auslong Development Management Pty Ltd [2020] VCAT 51 at [100]. K. ACCOUNTING, COMPENSATION, REIMBURSEMENT AND ADJUSTMENT – GENERAL
In Trani v Trani [2019] VSC 294 at [ 36 ] Kaye JA observed – “It is trite, but important, to bear in mind that the application for an accounting, provided for under s 234(1) of the Act, comprises a statutory right of action available to a co-owner of land. Such a cause of action is exclusively a creature of the Act. The

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CO-OWNERSHIP DISPUTES

A. CO-OWNERSHIP DISPUTES OUTSIDE THE PROPERTY LAW ACT 1958

(“PLA”) PART IV

F. GROUNDS FOR REFUSING AN ORDER UNDER PART IV – RESULTING

TRUST