Land in dispute can sit idle for years, deteriorating or accruing rates while the litigation runs. Order 14 Division 5 of the National Court Rules 1983 — headed Disposal of Land — allows the Court to deal with it.
Rules 32 and 33
32 — in this Division “land” includes any interest in or right over land.
33 — in proceedings relating to land, other than proceedings for possession of land, the Court may, at any stage of the proceedings —
(a) order that the whole or any part of the land be sold; and
(b) order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court may direct.
The power does not apply to proceedings for possession of land. That is deliberate: in a possession action the very question is who is entitled to possess, and selling the land would pre-empt it.
Where Division 5 does apply — partnership and estate disputes, co-ownership disputes, claims to an interest short of possession — the power is wide, and available at any stage.
Rule 32 matters: “land” includes any interest in or right over land. So a lease, an easement or a registered interest under the Land Registration Act (Chapter 191) is within the Division.
Disputes as to interests in customary land go to mediation and then to the Local Land Court under the Land Disputes Settlement Act (Chapter 45), not to the National Court. Division 5 is not a route around that. See challenging jurisdiction.
Rule 34
(2) The Court may appoint a party or other person to have the conduct of the sale.
(3) The Court may permit the person having the conduct of the sale to sell the land in such manner as he thinks fit.
(4) The Court may direct any party to join in the sale and conveyance or transfer or in any other matter relating to the sale.
(5) The Court may give such further directions as it thinks fit, including directions —
(a) fixing the manner of sale — whether by contract conditional on approval of the Court, by private treaty, by public auction, by tender, or by some other manner;
(b) fixing a reserve or minimum price;
(c) requiring payment of the purchase money into Court or to trustees or other persons;
(d) for settling the particulars and conditions of sale;
(e) for obtaining evidence of value;
(f) fixing the remuneration to be allowed to any auctioneer, real estate agent or other person.
A sale of land requires the registered proprietor to execute the transfer. Where one party refuses, sub-rule (4) allows the Court to direct any party to join in the sale and conveyance or transfer — and refusal to comply with that order is enforceable, ultimately as contempt.
A court-ordered sale carries an obvious risk: land sold cheaply, or to a connected party, while the litigation is unresolved. Sub-rule (5) is the protection, and the directions must be sought.
In practice ask for: a valuation under paragraph (e); a reserve price under paragraph (b); the method of sale specified under paragraph (a) — public auction or tender being more transparent than private treaty; the proceeds paid into Court under paragraph (c); and agents’ remuneration fixed under paragraph (f).
Paragraph (c) is the one that most often decides whether an opposing party will consent. If the money is paid into Court, nobody gains an advantage from the sale itself — the proceeds simply stand in place of the land until the dispute is decided. Compare Order 14 Rule 10(3), under which a fund may be ordered to be paid into Court or otherwise secured.
Rule 35
(1) Where land is sold by public auction, the auctioneer shall, unless the Court otherwise orders, certify the result of the sale.
(2) Where sold otherwise than by public auction, the solicitor of the person having the conduct of the sale shall certify the result.
(3) The Court may require that the certificate be verified by affidavit of the person certifying.
(4) The person conducting the sale shall file the certificate and affidavit (if any).
The certificate is how the Court and the parties learn what actually happened — the price, the purchaser, the terms. Where any party has reason for concern, ask under sub-rule (3) for the certificate to be verified by affidavit, which exposes the certifier to the consequences of a false statement on oath.
Rule 36
Where the Court makes an order for the mortgage, exchange or partition of land, Rules 34 and 35, so far as applicable and with the necessary modifications, apply as they apply to a sale.
Partition divides the land between the parties rather than converting it into money — often the better outcome where both sides want land rather than cash.
Mortgage raises money against the land without selling it — useful where the property must be preserved but funds are needed.
Exchange substitutes one parcel for another.
Each carries the Rule 34 machinery: conduct, directions, valuation, and the Rule 35 certificate. Where the land is producing income that needs collecting and managing in the meantime, consider instead the appointment of a receiver under Division 3.
By notice of motion citing Order 14 Rule 33, with an affidavit exhibiting the title, identifying every person with an interest, explaining why sale is necessary now rather than after trial, and annexing a valuation. Serve every party and, so far as practicable, anyone else whose interest would be affected.
Sources
- National Court Rules 1983 — O 14 rr 10, 11, 17–23, 32–36, Div 6
- Land Registration Act (Chapter 191)
- Land Disputes Settlement Act (Chapter 45)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.