Fraser Homes Limited (plaintiff) v Fraser Houses (NI) Limited (defendant).

Right to Partition - Sale in lieu of partition - Equitable jurisdiction of the court to order partition - Whether power to order partition or sale in lieu of partition is discretionary - Partition Acts 1868 and 1876 - Statute Law Revision Act 1950 - Trial of preliminary issue.

In the High Court of Justice in Northern Ireland, Chancery Division (before Mr Justice Campbell); judgment delivered 5 June 1998.

The Court has an equitable jurisdiction to order partition which has survived the repeal, by the Statute Law Revision Act 1950, of the statutory power to order sale and an action for partition may be instituted by a plaintiff having a legal or equitable estate or interest in possession. Unless it can be shown that the jurisdiction of the Court has been ousted in some manner, partition or sale will be ordered.

Mr Justice Campbell in the High Court so held in deciding, as a preliminary issue, whether the Court had discretion to refuse an application for partition.

Ben Stephens QC and Robert Millar BL for the plaintiff; Reginald Weir QC and Stephen Shaw BL for the defendant.

Mr Justice Campbell said that by summons Fraser Homes Limited sought the partition of lands which it owned jointly with Fraser Homes (NI) Limited. He stated that at common law coparceners alone had the right to compel partition and the common law writ de partitione facienda applied only to them. Joint tenants could not be compelled to make a partition and voluntary partition between them could be made only by deed.

In 1542 an Act for Joint Tenants was passed (33 Hen. 8, c. 10) giving, in Ireland, joint tenants and tenants in common the right that existed for coparceners at common law to compel partition by means of the writ de partitione facienda.

The common law writ proved to be a cumbrous and unsatisfactory method of procedure and from an early period the Court of Chancery, in the exercise of its concurrent jurisdiction, entertained suits for partition. Due to the difficulties with the procedure at common law it fell into disuse and the writ de partitione facienda was abolished, except as to dower by section 36 of Real Property Limitation Act 1833. After abolishment of the writ the Courts of Equity had an exclusive rather than a concurrent jurisdiction in partition.

The Courts of Equity had their limitations and the power to order partition did not extend to an order for sale in lieu of partition. As a result parliament intervened and passed the Partition Acts 1868 and 1876 giving the Court power to order sale of the property and a division of the proceeds.

The Act for Joint Tenants was repealed by the Statute Law Revision Act 1950. The argument is that, following the repeal in 1950 of the Act for Joint Tenants, joint tenants no longer might have a decree for partition Therefore, it was argued, by reason of the opening words to Section 3, 4 and 5 of the Partition Act 1868 which read "In a suit for partition, where if this Act had not been passed, a decree for partition might have been made", they are not entitled to an order for sale in lieu of partition. In Glass v McManus (unreported, 7 June 1997), Mr Justice Girvan held that the Court retained the power to order partition on the ground that after the passing of the Act of 1542 the right of joint tenants and tenants in common to bring suits for partition became well established and deeply rooted in the law of real property. The Partition Acts proceeded from that premise and they were left intact notwithstanding the repeal of the Act. In this decision, Mr Justice Girvan also referred to equity as having evolved an equitable right to partition in respect of jointly held property which existed when the writ of partition was abolished and which survives today.

Mr Justice Campbell stated that while the equitable jurisdiction may have been derived from the Act of 1542, it was independent of the Act. When the writ de partitione facienda was abolished in 1833, equitable partition had supplanted the statutory jurisdiction.

In 1950 when the Act of 1542 was repealed the equitable jurisdiction was preserved. Section 1(1) of the Statute Law Revision Act 1950 provided that the Act should not "affect any principle or rule of law or equity, or established jurisdiction, form or course of pleading, practice or procedure, or the general or public nature of any statute, or any existing usage, franchise, liberty, custom, privilege, restriction, exemption, office, appointment, payment allowance, emolument or benefit or any prospective right, notwithstanding that the same respectively may have been in any manner affirmed, recognised or derived by, in or from any enactment hereby repealed".

Since the equitable jurisdiction is derived from the statute of 1542, unlike the jurisdiction at common law, which was created by it, it has survived the repeal of the statute.

Mr Justice Campbell stated that since partition could be granted under the equitable jurisdiction of the court before the passing of the Partition Acts and it was a jurisdiction, which had survived to the present, the only question that remained to be considered was whether or not it is of a discretionary nature. In considering this question, he relied on the decision in Northern Bank Limited v Beattie and Another [1982] 18 NIJB and the case of North v Guinan (1829) Beat 342 and held that it is well established that while the court may not have a discretion, as is normally the case in equity, its jurisdiction can be ousted. Mr Justice Campbell considered the authorities where the jurisdiction of the court has been held to be ousted and said that they may be explained either as cases where an order for sale would prejudice third parties and is therefore outside the jurisdiction of the court or where the court would decline to make an order which may be futile.

Mr Justice Campbell therefore held that in answer to the issue raised in this summons, an action for partition may be instituted by a plaintiff having a legal or equitable estate or interest in possession and unless it can be shown that the jurisdiction of the court has be ousted in some manner, partition or sale will be ordered.

Solicitors: S. J. Diamond & Sons (Belfast) for the plaintiff; Morrow Graham (Belfast) for the defendant.

Jonathan L. Dunlop

Barrister