Gehrke v Coscolluela
[2013] QSC 282
•17 October 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Gehrke v Coscolluela and Ors [2013] QSC 282
PARTIES:
MARIA LASERIA GEHRKE
(Plaintiff)
v
ROBERTO ABRIAN COSCOLLUELA
(First Defendant)
and
R C INSURANCE PTY LTD ACN 067 302 158
(Second Defendant)
and
LETICIA COSCOLLUELA
(Third Defendant)
FILE NO/S:
BS 6819 of 2011
DIVISION:
Trial Division
PROCEEDING:
Application on the papers
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
17 October 2013
DELIVERED AT:
Brisbane
JUDGE:
Douglas J
ORDER:
Order as per draft.
SOLICITORS:
TayLaw Solicitors on behalf of the Plaintiff
This is an application pursuant to r 832(1) of the Uniform Civil Procedure Rules 1999 (Qld) in respect of the sale of property owned by the first and third defendants in proportions of nine-tenths by the first defendant and one-tenth by the third defendant. They are judgment debtors pursuant to a judgment of the court dated 29 January 2013.
An enforcement warrant has issued in favour of other plaintiffs in the Magistrates Court in proceedings number 10456 of 2012 in respect of a judgment debt owed by the first defendant in these proceedings. An auction of the relevant property at Stafford Heights in respect of the first defendant’s 90% interest in the property was held of the first defendant’s interest and achieved a result of an offer of $27,000 at the conclusion of the auction. That bidder then requested to purchase the remaining 10% interest of the third defendant by private treaty. That was not possible because of the terms of r 832(1) which provides that “unless the court orders otherwise, an enforcement officer must put up for sale by public auction all property liable to be sold under an enforcement warrant …”.
In support of the plaintiff’s application that the Court should order otherwise, her solicitor points out the following relevant issues in his affidavit filed 8 October 2013:
“17.On behalf of the plaintiff, therefore, I hereby request that this Honourable Court grant the Orders sought in this Application. In that respect, I can only offer the same reasons previously submitted to the Supreme Court enforcement officer as to why the orders sought in the Application should be granted, namely:
(a)The proposed arrangement has the consent of all the Enforcement Creditors in both the Magistrates Court and Supreme Court proceedings, and even has the tacit support of the Magistrates Court bailiff;
(b)The Stafford Heights Property is being sold for fair market value given that due process has been followed by the Magistrates Court bailiff in marketing the property for sale;
(c)There is nothing to suggest that the Supreme Court bailiff could achieve a better outcome than the Magistrates Court bailiff for the remaining 10% interest;
(d)The $3,000 offered for the 10% interest does in fact represent, in mathematical terms, 10% of the market value for the property based on the premise that the $27,000 fairly represents the current market value of the other 90% interest (under bailiff auction conditions), and
(e)This is a pragmatic solution that will avoid the need for the parties to incur additional costs and usage of the court’s limited resources in respect of the 10% interest.
18.Moreover, if the plaintiff was forced to separately auction the third defendant’s 10% interest in the Stafford Heights Property, then she would be expected to incur selling expenses in excess of the estimated market value of the 10% interest, namely:
(a)Security deposit of $2,500.00 (all of this is security deposit will be lost if the auction is unsuccessful),
(b)Bailiff’s auction fee of $60.00;
(c)Registered valuer’s property valuation fee of around $330.00; and
(d)Legal costs of around $3,300.00.”
In the circumstances, it seems appropriate to me to make an order permitting the Magistrates Court enforcement officer to sell the third defendant’s 10% interest in the property by private sale, the second of the proposed alternatives in the draft order provided with this application.
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