The moving party (respondent in the main action) brought an interlocutory motion for the partition and sale of two jointly owned family cottages.
The responding party opposed the motion, arguing that the Partition Act was not specifically pleaded and that he might be able to buy out the moving party's interest after the equalization of net family property at trial.
The court held that the failure to specifically plead the Partition Act was not a bar to relief, as there was no unfairness or surprise.
The court granted the motion, finding that the responding party failed to demonstrate a genuine issue for trial or that a forced sale would be vexatious, malicious, or oppressive.
