Duncan v Duncan - [2017] QDC 243

DISTRICT COURT OF QUEENSLAND

CITATION: Duncan v Duncan [2017] QDC 243

PARTIES:
STUART CRAIG DUNCAN

(applicant) v

MAXWELL SCOTT DUNCAN

(respondent)

FILE NO/S: D50/2017

DIVISION: Civil

PROCEEDING: Application

ORIGINATING COURT:
District Court, Mackay

DELIVEREDON: 10 October 2017

DELIVEREDAT: Mackay

HEARINGDATE: 25 and 28 September 2017, 4 and 6 October 2017

JUDGE: Smith DCJA

ORDER:
1. Pursuant to Section 38 of the Property Law Act 1974

(Q) SV Partners Insolvency (Qld) Pty Ltd Chartered Accountants located on 1st Floor corner Gordon and Sydney Streets, Mackay Queensland be appointed as Trustee for Sale of the real property at 99 Lelona Drive, Bloomsbury Queensland 4799 described as lot

62 on RP740624 title reference 21302012 (“the Property”) and that the property vest in the Trustee for the purposes of sale.

2.       That the Trustee be entitled to sell the property by such method as it deems appropriate in the circumstances including but not limited to sale by auction or by private treaty.

3.       That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments.

4.       That in the event of the sale by auction:

(a)     The Trustee shall determine the appropriate marketing campaign for the property including a    marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;

(b) The Trustee shall determine the reserve price for the auction after consultation with the auctioneer and considering any recommendation by the auctioneer;

(c) The Trustee may but is not obliged to obtain a valuation of the property if he deems that appropriate for the purposes of assistance in the determination of the reserve price at any auction.
5.That the Trustee is authorised to expend money on the property in preparation for its sale using the recommendation of any agent in that regard, and for its marketing or advertising and that the amount of such expenditure be paid for by the co-owners of the
property in the proportions set out at l l(e)(i)- (vi) below.
6.That pending sale the co-owners shall pay or cause to be paid in the proportions set out at 11(e)(i)–(vi) all outgoings on the property including rates, local authority charges, body corporate charges (if any) and maintain adequate fire and general insurance on the property and provide evidence of same to the Trustee as requested by him from time to time.
7.That the Respondent will vacate the property within two months from the date of this order and provide the keys to the property (if any) to the Trustee in preparation for sale.
8.That the Trustee is hereby indemnified by the owners or co-owners of the property against any claims made against them upon becoming registered owners as trustee on title, consequent upon a failure to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Duncan v Duncan

Details

AGLC: Duncan v Duncan [2017] QDC 243
Case: [2017] QDC 243
Decision Date: 10 October 2017

CaseChat Overview and Summary

The matter of Duncan v Duncan involved a dispute over the appointment of a Statutory Trustee for the sale of a specified property. The applicant, Duncan, sought the appointment under the Property Law Act 1974 (Q). The property in question was located at 99 Lelona Drive, Bloomsbury, Queensland, and the court was required to determine whether it was appropriate to vest the property in a trustee for sale.

The legal issues before the court centred on whether the appointment of a statutory trustee for the sale of the property was warranted and whether the terms of the sale, including the method and marketing strategies, were appropriate. The applicant argued that the property should be sold to resolve financial disputes between the parties, while the respondent contested the necessity and terms of the sale. The court had to weigh the statutory provisions and relevant case law to decide on the appropriate course of action.

The court examined the statutory framework and relevant case law, such as Goodwin v Goodwin and Wilson v Strzelcykowski & Ors. It concluded that the appointment of a statutory trustee was necessary to resolve the financial impasse between the parties and that the terms for the sale, including marketing strategies and sale methods, were appropriate. The court found that vesting the property in a trustee for sale and allowing the trustee to determine the sale method and marketing strategies was in the best interest of all parties involved.

The court ordered that SV Partners Insolvency (Qld) Pty Ltd Chartered Accountants be appointed as the Trustee for Sale of the property. The Trustee was granted the authority to sell the property by auction or private treaty and to determine the marketing strategies and terms of sale. The court's decision provided a clear pathway for the resolution of the financial disputes through the sale of the property, ensuring a fair and efficient process for all parties.

Orders

Orders of the court

1. Pursuant to Section 38 of the Property Law Act 1974

(Q) SV Partners Insolvency (Qld) Pty Ltd Chartered Accountants located on 1st Floor corner Gordon and Sydney Streets, Mackay Queensland be appointed as Trustee for Sale of the real property at 99 Lelona Drive, Bloomsbury Queensland 4799 described as lot

62 on RP740624 title reference 21302012 (“the Property”) and that the property vest in the Trustee for the purposes of sale.

2. That the Trustee be entitled to sell the property by such method as it deems appropriate in the circumstances including but not limited to sale by auction or by private treaty.

3. That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments.

4. That in the event of the sale by auction:

(a) The Trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Duncan v Duncan [2017] QDC 243
PARTIES:	STUART CRAIG DUNCAN (applicant) v MAXWELL SCOTT DUNCAN (respondent)
FILE NO/S:	D50/2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Mackay
DELIVEREDON:	10 October 2017
DELIVEREDAT:	Mackay
HEARINGDATE:	25 and 28 September 2017, 4 and 6 October 2017
JUDGE:	Smith DCJA
ORDER:	1. Pursuant to Section 38 of the Property Law Act 1974 (Q) SV Partners Insolvency (Qld) Pty Ltd Chartered Accountants located on 1st Floor corner Gordon and Sydney Streets, Mackay Queensland be appointed as Trustee for Sale of the real property at 99 Lelona Drive, Bloomsbury Queensland 4799 described as lot 62 on RP740624 title reference 21302012 (“the Property”) and that the property vest in the Trustee for the purposes of sale. 2. That the Trustee be entitled to sell the property by such method as it deems appropriate in the circumstances including but not limited to sale by auction or by private treaty. 3. That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments. 4. That in the event of the sale by auction: (a) The Trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;