Fletcher v Trezise

[2006] QDC 508

[2006] QDC 508

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1642 of 2006

WILLIAM JOHN FLETCHER AS TRUSTEE OF THE BANKRUPT ESTATE OF ALLISON MAY TREZISE

Applicant

and

BRENT TREZISE

and

MARK TREZISE

First Respondent

Second Respondent

BRISBANE

..DATE 14/07/2006

ORDER

CATCHWORDS: Property Law Act s38 - adjournment of application for appointment of trustee for sale at request of respondent - there was no prospect of the application's being resisted - order contained terms to assist the respondent to become the purchaser

HIS HONOUR: This is an application for appointment of a trustee for sale under sections 38 and following of the Property Law Act 1974. The applicant is trustee of the bankrupt estate of Allison May Trezise. She was one of the owners of an identified property in the central highlands, the others being brothers; Brent Trezise and Mark Trezise. The former has appeared today. The latter, although served with the application, has not appeared in Court and has indicated an intention not to appear.

Brent Trezise has represented himself and expressed to the Court a layman's concerns about aspects of the situation which I can well understand.  He was interested in seeking an adjournment of the application, he said so he could take legal advice.  While it is a strong thing for a court to stand in the way of anyone who is brought before it, as a defendant or respondent, obtaining legal advice, it might be observed that Mr Trezise has known of this application for some weeks; it was filed on the 22nd of June and presumably served not long afterwards.  No legal advice has been obtained in that time. 

I am confident in saying that for present purposes, at least on the basis of anything Mr Trezise has been able to put before the Court, there is no possible defence to the application.  The Court should refuse a pointless adjournment which would only serve to increase costs.  Costs are a concern to Mr Trezise and presumably all around.  He tells the Court he is disappointed that negotiations with Mr Fletcher, who is trustee of Allison May Trezise's estate, have not led to some agreement whereby he would purchase her former share.  That is simply a matter of agreeing on a purchase price.  It is clear from Mr Cope's submissions today that Mr Fletcher understands perfectly well his ability to sell by private treaty the share of the bankrupt for an appropriate price to Mr Trezise or to anyone else.

What may be related to Mr Trezise's dissatisfaction in this regard is the escalation in value of the subject property, as indicated by "appraisals" obtained from the same valuer by Mr Fletcher.  I heard that over a period of a year or less those appraisals have shown an increase of $40,000 in value.  Mr Trezise is not disposed to accept there has been such an increase.  The proposal has come from him that a valuation ought to be obtained which if it is obtained, would be useful information for all concerned. 

It would seem likely that a sale to Mr Trezise or elsewhere at or close to the valuation would be acceptable.  This outcome might well avoid the substantial costs of an auction sale which the statutory trustee might well judge is appropriate in the absence of all parties consenting to a sale by private treaty on some other basis.

The proposed order contains the usual reservation of the ability of Mr Trezise or his brother, or indeed both of them together, to purchase on favourable terms in so far as, should they be the purchaser, no deposit would be required.  It seems to me this provides as much protection as Mr Trezise could possibly hope for from the point of view of his becoming the purchaser of an increased interest of the property.

He is protected by an amendment made by me to the proposed draft order which will add to the applicant's costs of this application the costs of compliance with paragraph 3 of the order in respect of the valuation referred to.  The order imposes on Mr Trezise the obligation of obtaining that valuation from either of two identified firms with offices in Mackay and making copies of it available to the other parties.  This will presumably save costs which would be incurred if the statutory trustee, a fellow member of the accounting profession with the applicant, but not of course in the same firm, were to attend to that aspect. 

I have done all I can to alleviate Mr Trezise's expressed concern that the order for costs of this application might entitle Mr Fletcher to costs he might have incurred as trustee in the bankruptcy which costs have been eventuating since about September 2004.  Of course, it is only the costs of the application which are dealt with by the Court's order and it seems impossible that those could go any further back than the time when the applicant went to the solicitors with specific instructions to prepare and advance this application.

There will be an order in terms of the initialled draft.

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