Cowley v Macwood Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Cowley v Macwood Pty Ltd & Ors [2015] QSC 343

PARTIES:

GRAEME CHARLES COWLEY
(applicant)

v

MACWOOD PTY LTD T/AS HOT STUFF PROPERTY PTY LTD AS/TRUSTEE FRANK ROBERT COWLEY, JOHN WELLESLEY COWLEY, GARY ROY COWLEY & JENELLE MAURENE COOKE
(respondent)

FILE NO/S:

S53/2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

21 October 2015

DELIVERED AT:

Mackay

HEARING DATE:

20-21 October 2015

JUDGE:

McMeekin J

ORDERS:

Orders as per the draft, initialled and placed with the papers.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES - APPOINTMENT, REMOVAL AND ESTATE OF TRUSTEES – RETIREMENT AND REMOVAL – REMOVAL BY THE COURT – GROUNDS FOR REMOVAL – where the applicant is a minority beneficiary under a trust – where the statutory trustee was appointed to effect sale of the trust property in 2013 – where the trust property remains unsold – whether there are grounds for removal of the trustee – whether the trustee should be removed

Property Law Act 1974 (Qld), s 39(1)(a)
Trusts Act 1973 (Qld), s 32(1)(c)
Miller v Cameron (1936) 54 CLR 572

COUNSEL:

M Hodge for the applicant
S Naylor sol for the respondent
G Smart sol for the statutory trustee

SOLICITORS:

SB Wright, Wright & Condie for the applicant
Macrossan & Amiet for the respondent

SR Wallace & Wallace for the statutory trustee

1. MCMEEKIN J: Mr Graeme Cowley seeks the removal of statutory trustees for sale. That order is opposed by all other persons having an interest in the lands the subject of the trust (“the respondents”). The natural persons are siblings.

1. The trustees were appointed pursuant to an order of the court made on 26 February 2013. The order was made with the consent of all parties.  The trustees appeared separately on the application as there were allegations that amounted, or may have amounted, to allegations of breach of trust.

1. There are two parcels of land that are the subject of the trust. The parties refer to the parcels as the “Seaforth Property” and the “Halliday Bay Property”. The applicant has a 20% interest in the Seaforth property and a 10% interest in the Halliday Bay property. The respondents are united in their approach, and always have been, and so hold the majority interest.

1. The applicant is concerned that little has been done to bring about the sale of the properties since the appointment of the trustees. He sought that appointment in late 2012. The appointment of the trustees came about as a result of his wish to have the lands sold. The respondents were initially opposed to that course. Thus the applicant has been waiting for three years to obtain his share of the proceeds of sale.

1. There is a dispute as to whether the applicant was initially willing to delay the sale because of soft market conditions. Whatever may have been his initial position it has been clear now since September 2013 that he was desirous of the properties being sold.

1. The test for removal…