DVN v J - [2008] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

DVN v J [2008] QDC 12

PARTIES:

D V N

Plaintiff

V

J

First Respondent

V

FIDUCIAL TRUSTEES LIMITED AS TRUSTEE OF THE ELORINDI ASSET TRUST

Second Respondent

V

RAYMOND PEARS

Third Respondent

FILE NO/S:

D629 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Property Adjustment Order

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

11 February 2008

DELIVERED AT:

District Court Brisbane

HEARING DATE:

12, 13, 14 and 20 December 2007

(Final submissions received 25 January 2008)

JUDGE:

Kingham DCJ

ORDER:

1.               That the first respondent pay the applicant the sum of $138,075 by way of property adjustment by bank cheque payable to “Jones Mitchell Lawyers Trust Account” within one month from the date of this order.

2.               That pending the first respondent’s compliance with paragraph 1 of this order, the injunctions in Paragraph 6 of the order dated 27 August 2007 and paragraph 1of the order dated 13 December 2007 are hereby extended until further order.

3.               That if the first respondent defaults in payment in accordance with paragraph 1 of this order (“default”):-

3.1          The first respondent shall, within 3 days after its delivery by the applicant, do all acts necessary to execute an authority addressed to the Commonwealth Bank of Australia authorising and directing the release of the entire funds standing on deposit in YouthSaver account number 443010706325 in the name of IR Johnson to the applicant by way of bank cheque in favour of “Jones Mitchell Lawyers Trust Account”, and in the event of the respondent’s default of compliance with this paragraph, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the respondent; and

3.2           The applicant be and is hereby appointed trustee for the sale of the property at 10 Warrigal Crescent, Ashmore in the State of Queensland (“the Ashmore property”), and for that purpose the following shall apply:-

3.2.1        The first respondent shall, within three days after default, transfer to the applicant as trustee, the whole of his right, title and interest in the Ashmore property, subject to the existing mortgage in favour of Perpetual Trustees Victoria Limited;

3.2.2        In the event of the first respondent’s default under paragraph 4.2.1 of this order, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the first respondent;

3.2.3        The first respondent shall vacate the Ashmore property and deliver all keys, codes and devices in respect of the property to the applicant within 14 days after default, and thereafter remain away from the property and not re-enter it;

3.2.4        The first respondent shall forthwith cause to be repaired all damage to the Ashmore property caused by him at his sole expense;

3.2.5        The Ashmore property shall be listed for sale by private treaty or public auction with such…

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 DVN v J

Details

AGLC: DVN v J [2008] QDC 12
Case: [2008] QDC 12
Decision Date: 11 February 2008

CaseChat Overview and Summary

In the District Court of Queensland, the case of DVN v J involved a dispute over a property adjustment and associated costs. The applicant, DVN, sought an order for the first respondent, J, to pay a sum of money and costs. The legal issues before the court included whether the first respondent should be ordered to pay the specified amount and associated costs and whether the applicant should be appointed as trustee for the sale of a property in the event of non-compliance. The court referenced S v B [2004] QSC 80 at [51] – [52] in its reasoning, emphasising the necessity for compliance with property adjustment orders and the enforcement of such orders through alternative means if necessary.

The court determined that the first respondent should pay the sum of $138,075 to the applicant within one month. Additionally, in the event of non-payment, the applicant would be appointed as trustee for the sale of the Ashmore property, with specific instructions on the sale process, payment of expenses, and distribution of sale proceeds. The court also ordered the first respondent to pay the applicant's costs of the proceedings. These orders were made to ensure compliance with the original property adjustment order and to provide a clear course of action if the first respondent failed to meet their obligations.

Orders

Orders of the court

1. That the first respondent pay the applicant the sum of $138,075 by way of property adjustment by bank cheque payable to “Jones Mitchell Lawyers Trust Account” within one month from the date of this order.

2. That pending the first respondent’s compliance with paragraph 1 of this order, the injunctions in Paragraph 6 of the order dated 27 August 2007 and paragraph 1of the order dated 13 December 2007 are hereby extended until further order.

3. That if the first respondent defaults in payment in accordance with paragraph 1 of this order (“default”):-

3.1 The first respondent shall, within 3 days after its delivery by the applicant, do all acts necessary to execute an authority addressed to the Commonwealth Bank of Australia authorising and directing the release of the entire funds standing on deposit in YouthSaver account number 443010706325 in the name of IR Johnson to the applicant by way of bank cheque in favour of “Jones Mitchell Lawyers Trust Account”, and in the event of the respondent’s default of compliance with this paragraph, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the respondent; and

3.2 The applicant be and is hereby appointed trustee for the sale of the property at 10 Warrigal Crescent, Ashmore in the State of Queensland (“the Ashmore property”), and for that purpose the following shall apply:-

3.2.1 The first respondent shall, within three days after default, transfer to the applicant as trustee, the whole of his right, title and interest in the Ashmore property, subject to the existing mortgage in favour of Perpetual Trustees Victoria Limited;

3.2.2 In the event of the first respondent’s default under paragraph 4.2.1 of this order, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the first respondent;

3.2.3 The first respondent shall vacate the Ashmore property and deliver all keys, codes and devices in respect of the property to the applicant within 14 days after default, and thereafter remain away from the property and not re-enter it;

3.2.4 The first respondent shall forthwith cause to be repaired all damage to the Ashmore property caused by him at his sole expense;

3.2.5 The Ashmore property shall be listed for sale by private treaty or public auction with such real estate agent and/or auctioneer as determined by the applicant;

3.2.6 The list price or reserve price (as the case may be) of the Ashmore property shall be as determined by the applicant and not less than $470,000;

3.2.7 The sale price of the Ashmore property shall be any offer which is at least 90% of the list price, or at least 90% of the reserve price if the reserve price is not reached at auction;

3.2.8 The contract of sale in respect of any sale by private treaty shall provide for completion within 30 days of the date of the contract;

3.2.9 The applicant shall have authority to execute the contract of sale and transfer of the Ashmore property as trustee for the first respondent;

3.2.10 The applicant shall instruct a solicitor to act in the sale and prepare the contract of sale and transfer;

3.2.11 Pending completion of the sale, the first respondent shall pay or cause to be paid all loan repayments to the mortgagee, rates, insurance premiums, electricity expenses and other outgoings in respect of the Ashmore property as they fall due;

3.2.12 The sale proceeds of the Ashmore property shall be applied in the following manner and priority:-

3.2.12.1 In payment of all monies due under the mortgage to favour of Perpetual Trustees Victoria Limited registered over the title of the property;

3.2.12.2 In payment of agent’s commission and any advertising or other costs associated with the sale;

3.2.12.3 In payment of the legal costs and outlays relating to the sale, including the applicant’s costs of implementing this order on an indemnity basis;

3.2.12.4 The sum of $138,075 to the applicant, together with interest at the rate of 10% per annum from the date of default under this order until the date of completion of the sale, provided that:-

3.2.12.4.1 In the event that the remaining sale proceeds are less than $138,075, then the entire remaining sale proceeds shall be paid to the applicant as a credit towards the sum due to the applicant pursuant to this order; and

3.2.12.4.2 Interest shall be payable by the first respondent on the sum referred to in paragraph 3.2.12.4.1, and any balance due to the applicant after that payment, at the rate of 10% per annum.

3.2.12.5 Any balance to the first respondent.

4. That pursuant to Section 341 of the Property Law Act 1974 (Qld), the first respondent shall within 30 days after the date of this order pay the applicant’s costs of and incidental to these proceedings, fixed in the amount of $59,211.74.

5. That the applicant shall have liberty to apply as to the implementation or enforcement of this order at short notice.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:		DVN v J [2008] QDC 12
PARTIES:		D V N Plaintiff V J First Respondent V FIDUCIAL TRUSTEES LIMITED AS TRUSTEE OF THE ELORINDI ASSET TRUST Second Respondent V RAYMOND PEARS Third Respondent
FILE NO/S:		D629 of 2006
DIVISION:		Civil Jurisdiction
PROCEEDING:		Application for Property Adjustment Order
ORIGINATING COURT:		District Court Southport
DELIVERED ON:		11 February 2008
DELIVERED AT:		District Court Brisbane
HEARING DATE:		12, 13, 14 and 20 December 2007 (Final submissions received 25 January 2008)
JUDGE:		Kingham DCJ
ORDER:	1. That the first respondent pay the applicant the sum of $138,075 by way of property adjustment by bank cheque payable to “Jones Mitchell Lawyers Trust Account” within one month from the date of this order. 2. That pending the first respondent’s compliance with paragraph 1 of this order, the injunctions in Paragraph 6 of the order dated 27 August 2007 and paragraph 1of the order dated 13 December 2007 are hereby extended until further order. 3. That if the first respondent defaults in payment in accordance with paragraph 1 of this order (“default”):- 3.1 The first respondent shall, within 3 days after its delivery by the applicant, do all acts necessary to execute an authority addressed to the Commonwealth Bank of Australia authorising and directing the release of the entire funds standing on deposit in YouthSaver account number 443010706325 in the name of IR Johnson to the applicant by way of bank cheque in favour of “Jones Mitchell Lawyers Trust Account”, and in the event of the respondent’s default of compliance with this paragraph, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the respondent; and 3.2 The applicant be and is hereby appointed trustee for the sale of the property at 10 Warrigal Crescent, Ashmore in the State of Queensland (“the Ashmore property”), and for that purpose the following shall apply:- 3.2.1 The first respondent shall, within three days after default, transfer to the applicant as trustee, the whole of his right, title and interest in the Ashmore property, subject to the existing mortgage in favour of Perpetual Trustees Victoria Limited; 3.2.2 In the event of the first respondent’s default under paragraph 4.2.1 of this order, the Registrar or Deputy Registrar of the District Court of Queensland at Southport is hereby appointed to sign all documents necessary to implement this order in the name of the first respondent; 3.2.3 The first respondent shall vacate the Ashmore property and deliver all keys, codes and devices in respect of the property to the applicant within 14 days after default, and thereafter remain away from the property and not re-enter it; 3.2.4 The first respondent shall forthwith cause to be repaired all damage to the Ashmore property caused by him at his sole expense; 3.2.5 The Ashmore property shall be listed for sale by private treaty or public auction with such…