Application for sale of land under s 126(1) Property Law Act 1969 (WA)
Sale of land in lieu of partition
Whether orders for sale should be made
Quick Take
1Under s 126(1) of the Property Law Act 1969 (WA), where a co-tenant holding a half share or more requests sale in lieu of partition, the court must direct a sale unless it sees good reason to the contrary; the section does not embody a broad discretion to refuse sale.
2A co-owner's personal or financial circumstances, desire to continue occupying the property for business purposes, willingness to purchase the other's share at valuation, or hardship caused by a sale are not matters that constitute a defence to, or good reason to refuse, an order for sale under s 126(1).
3Given the binary structure of s 126(1) — sale or partition — the summary judgment procedure under O 14 RSC is clearly proper and appropriate, and an application is irresistible unless an agreement contracting out of the section is alleged.
