In Kainth v Brar 2022 BCSC 1552 the petitioner in a partition action brought an application for sole conduct of the sale of the property.
The Court reviewed firstly it’s jurisdiction to grant such an order under both the partition of Property act as well as Rule 13-5(4) (a) of the Supreme Court Rules.
s. 6 of the Partition of Property Act, R.S.B.C. 1996, c. 347 [PPA], which provides:
6 In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, and if the party or parties interested, individually or collectively, to the extent of 1/2 or upwards in the property involved request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property, the court must, unless it sees good reason to the contrary, order a sale of the property and may give directions.
There is also authority to direct a person to have sole conduct of sale under Rule 13-5(4)(a) of the Supreme Court Civil Rules, which provide that when the court orders the sale of a property:
(4) The court may give directions for the purpose of effecting a sale, including directions:
(a) appointing the person who is to have conduct of sale.
In Durrani v. Lehal, 2018 BCSC 2489 [Durrani], Justice Fitzpatrick set out the following factors for consideration when deciding who should have conduct of sale:
[48] In Dhillon v. Kumar, 2014 BCSC 2366, Master Keighley sets out common sense considerations in terms of deciding who should have conduct of sale:
As to whether the claimant should be given sole conduct of sale, while there is no singular test for granting sole conduct of sale, the Court should consider all factors including the willingness of a party to facilitate sale, the inability of the parties to agree on routine aspects of sale and the inability of the parties to cooperate: McLachlan v. McLachlan, 2013 BCSC 1733.
Durrani sets out three factors the court may consider when determining whether to award one party sole conduct of sale:
• willingness of the party to facilitate a sale;
• inability of the parties to agree on routine aspects of the sale; and
• inability of the parties to cooperate.
A brief summary of the considerations is as follows:
1) Sole conduct of sale has been awarded when the other party has caused unnecessary delay: Dunford v. Sale, 2007 BCSC 1422;
2) Sole conduct of sale has been awarded where the other party is not adversely affected: Lashman v. Spencer, 2022 BCSC 96;
3) Sole conduct of sale has been awarded to a party based on concerns that the other party may thwart the marketing and sale process on the basis that they live at the property: Dixon v. Morgan, 2020 BCSC 1329;
4) Sole conduct of sale has been awarded to a party where the other party would merely suffer financial or personal inconvenience: Tseng v. Tseng, 2021 BCSC 27; Eckhart v. Ball, 2019 BCSC 1530; and
5) It is common practice for trial courts to make orders of joint conduct of sale since both parties have a profound interest in the terms of any sale, even where there is evidence that the parties have difficulty in cooperating: Etemadi v. Maali, 2021 BCSC 395.
