No Necessity for Prior Partition Application to Terminate Co-Proprietorship or Other Existing Cause for Court to Exercise Power of Sale

In Ong Chin Hai & Anor v Ong Hoo See & Ors [2022] 7 CLJ 852, the Court of Appeal held that there is no requirement under the National Land Code (Revised 2020) (‘NLC’) for a co-proprietor to first apply for the land to be partitioned before he can apply to terminate his co-proprietorship under Section 145 of the NLC (‘Section 145’). The High Court is also empowered to direct a sale of the subject land pursuant to O. 31 r. 1 of the Rules of Court 2012 (‘O. 31 r. 1’).
Brief facts
All the plantiffs and defendants were registered joint owners of a property (‘Property’), each holding 10% undivided shares therein.
The plaintiffs’ solicitors notified the defendants in writing of the plaintiffs’ intention to sell the Property. The 1st and 2nd defendants agreed to such sale, but the 3rd and 4th defendants did not reply.
The plaintiffs applied to the High Court for various orders, including an order to terminate the joint ownership of the Property and to sell the Property by public auction. The application was allowed by the High Court.
The issues before the Court of Appeal
Dissatisfied with the High Court’s decision, the 3rd and 4th defendants appealed. The issues before the Court of Appeal include whether the learned Judicial Commissioner had erred both in fact and in law when he failed to consider the plaintiffs’ failure to satisfy the requirements: 
  1. that the plaintiffs had requested to partition the Property and the defendants had not consented to the same, or that an application had been made to partition the Property and such application was rejected before applying to terminate the co-proprietorship under Section 145; and 

  2. that there must be an existing or separate cause or matter before the court can exercise its power to order sale of immovable property under O. 31 r. 1. 
The decision of the Court of Appeal
Application for termination of co-proprietorship under Section 145
Section 145, inter alia, provides that where “any of the co-proprietors will neither join in, nor consent to the making of, an application for partition”, or the partition is incapable of being approved by reason of the operation of Section 136(1)(f) of the NLC (which relates to the prescribed area of the subdivisional portion), the Court may “on the application of any of the co-proprietors” make such order as it may think just to enable the co-proprietorship to be terminated, including an order that the land be sold.
The Court of Appeal observed that “any of the co-proprietors” as stated in Section 145 may apply to terminate the co-proprietorship, thus, the plaintiffs need not show that they had requested to partition the Property and that the defendants did not consent to such request before Section 145 can be invoked.
The plaintiffs were in fact found to have no intention to apply for partition, and their intention was to terminate the co-proprietorship, to have the Property sold by public auction and for the proceeds to be divided equally between the plaintiffs and the defendants.
The Court of Appeal added that there is also no requirement under the NLC for a co-proprietor who wished to terminate his co-proprietorship of the land to show that he had applied to partition the land, but his application had been rejected before he could seek a remedy from the court under Section 145.
Court’s power to order sale of immovable property under O. 31 r. 1.
O. 31 r. 1 provides that the Court may order an immovable property or any part thereof to be sold where in any cause or matter relating to any immovable property, it appears necessary or expedient for the purposes of such cause or matter that the property should be sold.
The Court of Appeal clarified that under O. 31 r. 1, there is no express requirement for there to be an existing or separate cause or matter before the court can exercise its power to order the land sale. The Court of Appeal referred to section 3 of the Courts of Judicature Act 1963 which defines “cause” to include, amongst others, any action, suit or other original proceeding between a plaintiff and a defendant, and “matter” to include every proceeding that is not a cause, and held that the originating summons filed by the plaintiffs in the instant case came within the ambit of O. 31 r. 1.
The Court of Appeal also saw no reason to disturb the findings of the learned Judicial Commissioner that there was a stalemate between the parties and the Property sale had become necessary and expedient to resolve the deadlock.
For the reasons set out above, the Court of Appeal dismissed the appeal.
This decision affirms that a co-proprietor who wishes to terminate his or her co-proprietorship need not apply to partition first, before he or she can apply to Court to terminate the co-proprietorship.
Case summary by Jesy Ooi (Partner) and Engy Tan (Senior Associate) of the Real Estate Practice of Skrine.

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