Stoffels v Piper [2024] NFSC 2

Supreme Court of Norfolk Island

Stoffels v Piper [2024] NFSC 2 File number(s): SC 1 of 2023

Judgment of: WIGNEY J

Date of judgment: 30 January 2024

Date of publication of reasons: 5 February 2024

Catchwords: REAL PROPERTY – application for partition of property held by joint tenants – whether "good reason" not to order sale and partition under s 4(1)(b) of the Partition Act 1900 (NSW) in its application to Norfolk Island under the Partition Ordinance Act 1931 (NI) – no "good reason" not to order sale and partition of property – order for property to be sold

Legislation: Partition Act 1900 (NSW) Partition Ordinance 1931-1964 (NI)

Cases cited: Foote v Foote (2014) 11 ASTLR 504; [2014] NFSC 2 Sovova v Ojvan (1987) 72 ACTR 10 Squire v Rogers (1979) 27 ALR 330

Number of paragraphs: 24

Date of last submission/s: 30 November 2023

Date of hearing: 30 January 2024

Solicitor for the Plaintiff: J Brown of McIntyres Lawyers

Counsel for the Defendant: The Defendant appeared in person

ORDERS SC 1 of 2023

BETWEEN: ERIKA LEE STOFFELS Plaintiff

AND: ANDREW HARRY PIPER Defendant

order made by: WIGNEY J DATE OF ORDER: 30 JANUARY 2024

THE COURT ORDERS THAT:

1. Pursuant to section 4(1)(b) of the Partition Act 1900 (NSW), in its application to Norfolk Island under the Partition Ordinance 1931-1964 (NI), the property described as Lot 9 of section 30, portion 75e being the land comprised in Title number 1813 Edition 8, known as 65 Captain Quintal Drive, Norfolk Island (the Property), with an area of 2.638 hectares more or less, be sold. 2. Pursuant to ss 4(3) and 15(c) of the Partition Act 1900 (NSW), the sale of the Property be effected out of Court subject to the restrictions and directions set out in the following orders. 3. The sale be effected by a real estate agent carrying on business on Norfolk Island as the parties may agree in writing within seven (7) days from the date of these orders, failing which the sale shall be effected by such real estate agent carrying on business on Norfolk Island as may be selected by the Registrar in his or her absolute discretion. The agent shall be entitled to charge his or her usual commission in relation to the negotiation and effecting of the sale. 4. The agent in the first instance shall seek to sell the Property by private treaty for such price as may be agreed between the parties in writing, and failing such agreement, the agent shall offer the Property for sale by public auction, and for that purpose the reserve price shall be the amount referred to above as having been agreed between the parties in writing, and failing such agreement the reserve price shall be the average of market appraisals obtained from each of the estate agents who carry on business on Norfolk Island. 5. If no person purchases the Property at public auction at a figure equal to or in excess of the said reserve price, then the agent shall seek to sell the Property by private treaty at the best price available. 6. Either of the parties be at liberty to purchase the Property in any sale pursuant to these orders. 7. The Registrar be authorised to execute all contracts, deeds, documents or paper writings on behalf of the parties in his or her capacity as the proprietors of the Property that are necessary or desirable to effect and complete the sale of the Property in accordance with these orders, in the event that the parties or either of them fail to do so within seven (7) days from the date on which the documents or paper writings are submitted to them for execution. 8. The terms and conditions of sale (including but not limited to the provisions of the contract for sale) be as determined and agreed by the parties in writing, and failing such agreement within seven (7) days of a draft terms of sale being submitted to the parties, such terms and conditions shall be determined by the Registrar in his absolute discretion. 9. The defendant vacate the Property within twenty-one (21) days from the date of these orders and deliver the keys to the agent. 10. After completion of the sale, the proceeds of sale be used to pay any: (a) repayment of the mortgage to Westpac Banking Corporation which is secured against the Property; (b) unpaid rates, levies or other charges issued by the Norfolk Island Regional Council in respect of the Property; (c) insurance charges levied on or in respect of the Property; (d) vendor's legal fees in relation to the sale; and (e) agent's commission and other expenses in relation to the sale. 11. The balance of the proceeds of the sale of the Property be paid into Court pending further order of the Court in relation to the distribution of those proceeds. 12. The costs of this proceeding be paid on a party and party basis by the defendant, as agreed or taxed. 13. The parties have liberty to apply on five (5) days' notice for the purpose of making any supplementary or consequential or procedural orders or directions that may become necessary in respect of the sale of the Property.