Miller v Martin

[2020] VSCA 4

Victorian Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Co-ownership of land
3. › Power of sale under statute
4. › Whether co-owned property held on resulting or constructive trust or as partnership property
5. › Whether property had ceased to be partnership property
6. › Whether power of sale required consideration of entitlements upon dissolution of partnership
7. › Property Law Act 1958 (Vic), ss 228, 233, 234C
1. Practice and Procedure
2. › Jurisdiction of VCAT
3. › Property Law Act 1958 (Vic), s 234C
4. › Whether 'the matter which is the subject of the application relates to a proceeding under the Partnership Act 1958'
5. › Meaning of 'proceeding under' an Act
6. › Whether existence of partnership sufficient or whether actual proceedings under Partnership Act required
1. Practice and Procedure
2. › Application for reinstatement of appeal
3. › Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 64.45
4. › Whether appeal so devoid of merit as to be bound to fail
5. › Whether unjust for appeal to be taken as abandoned
1. Partnership
2. › Existence of partnership
3. › Whether partnership agreement required as precondition to finding of partnership
4. › Whether partnership can be inferred from conduct of parties
5. › Partnership Act 1958 (Vic), s 5(1)

Quick Take

The phrase 'proceeding under the Partnership Act 1958' in s 234C(2)(c) of the Property Law Act 1958 (Vic) requires actual legal proceedings commenced under the Partnership Act (such as an application for dissolution or winding up); the mere existence of a partnership between co-owners does not deprive VCAT of jurisdiction under Part IV. Property originally acquired as partnership property ceases to be so when transferred to include non-partner co-owners, constituting a distribution of partnership property.