TERMINATION OF CO-PROPRIETORSHIP
1) Can the court terminate the parties’ co-proprietorship or not ? Yes, it is possible.
2) How to terminate the co-proprietorship ?
= Subdivide the land = Have the land partitioned = Transfer the minority shareholder’s share to the majority shareholder’s share, subject to payment(usually not favored and only given if the minority co-proprietor cannot be traced) = Order a sale of the land by way of public auction is the fairest and most practical way because it gives the co-proprietors a chance to bid and own the land while simultaneously ensuring that those who failed at the bidding will still get their respective entitlements from the highest price fetched at the action.
3) What are the laws that empowers the court to terminate the co-proprietorship ?
= s135 and s136 of National Land Code (subdivision of the land) = s140 and s141 of National Land Code (partition of the land) = s145(1) (termination of co-proprietorship is allowed if any co-proprietor don’t consent OR partition of land incapable of being approved) = s145(2)(c) of National Land Code (terminate co-proprietorship by ordering the sale of the land) = s25(2) of Court of Judicature Act 1964 (terminate co-proprietorship by ordering the sale of the land) = s3 and s4 of Schedule of the Court of Judicature Act 1964 (terminate co-proprietorship by ordering the sale of the land)
4) When will the court only consider termination of co-proprietorship ?
Termination of co-proprietorship may be resorted to = IF, under s145(1)(a) of NLC, the partitioning of the land will result in each partitioned portion being less than 2/5 of a hectare (meaning less than 43055 sq ft),. IF under s145(1)(b) of NLC, any of the co-proprietors will never consent to the partitioning of the land
5) Are there any case laws roughly similar to our client’s case ?
Kumarappan Chettiar v S Ramasamy (2000) Facts: 1) Plaintiff and defendant are brothers, plaintiff being the elder one 2) Both inherited the land and are registered co-proprietors of the land 3) Plaintiff proposed to have the land partitioned by exact equal division but defendant objected 4) Judge noticed that there were bad blood feuds between the brothers involving allegations of fraud, cheating and attempts to deprive one another from inheriting the land, which are irreconcilable. 5) Judge also noticed the plaintiff is old in age. Held: Termination of co-proprietorship by ordering the sale of the land was granted
Koh Boh Huat v Tan Niam Neo (2007) Facts: 1) Both plaintiffs & defendants are registered co-proprietors of a land, which have been left idle. 2) Developer company approached plaintiff to develop the land 3) Plaintiffs(majority share co-proprietors) agreed but defendants(minority share co-proprietors) objected without reasonable grounds 4) Developer, aiming to settle amicably, suggested that the land be partitioned, but defendant still refused without reasonable grounds 5) Plaintiffs, advanced in their age, instructed their lawyers to notify the defendants about their intention to sell the land as a practical settlement whereby proceeds of sale will be apportioned in accordance to their respective shares. Held: Termination of co-proprietorship by ordering the sale of the land was granted. *Defendants were unrepresented and absent during trial
Hasiah bt Mat v Johanariffin bin Din (2010) Facts: 1) Plaintiff and 4 defendants inherited the land from the deceased. 2) 4 defendants were the deceased’s heir 3) Plaintiff applied to terminate the co-proprietorship as she was an old mother who needed the money from the sale of the land for the treatment of her child’s cancer. 4) 4 defendants objected Held: Termination of co-proprietorship by ordering the sale of the land was granted *This case also established that the plaintiff need not first apply for partitioning of the land before he/she can apply for termination of co-proprietorship by sale of the land. Meaning, termination of co-proprietorship has a chance to be applicable as long as s145(a) and (b) are satisfied.
6) What are the procedures to commence the action ?
1) Consider preliminary matters: = Locus Standi = Cause of Action = Limitation Period = Any non-compliance of ROC 2012 = Interim Remedies = Parties = Costs = etc
2) Commence action by originating summons (OS), Order 5 rule 4(1) = Order 7 rule 2 governs the forms (Form 5 or 6) and contents of the originating summons
3) Serve the OS, O10 and O62 = Serve personally on the defendant, O10 r1 = OS is deemed to be duly served once the defendant’s lawyer endorses the OS, O10 r2 = OS’s service is effective by leaving the defendant a sealed copy of the OS, O62 r3 = If defendant avoids service then apply to court for substituted services, O62 r5
4) File and serve affidavit, O28 r3C = file and serve affidavit within 7 days after serving the OS, O28 r3C(1)
5) Defendant file and serve affidavit in reply, O28 r3C = file and serve affidavit within 21 days after the service of the plaintiff’s affidavit, O28 r3C(3)
6) Pre-trial case management, O34 r1 to r9 and r11
7) Determine the mode of trial, O33 = the action can be tried either before (1)a judge, (2)a judge with Registrar’s assistance, (3)a Registrar, O33 r1
8) During trial, O35
9) Judgment/Order given, O42 = set aside judgment/order, O42 r13
10) Execution of judgment/order
11) Appeals, Court of Judicature Act 1964, Rules of Court of Appeal 1994, Rules of Federal Court 1995
