Grant v Hall - [2014] QDC 168

DISTRICT COURT OF QUEENSLAND

CITATION:

Grant & another v Hall [2014] QDC 168

PARTIES:

GAE ELAINE GRANT

(first plaintiff applicant)

and

PAULINE DOROTHY ROSENBLUM

(second plaintiff)

v

AMBER LOUISE HALL

(defendant respondent)

FILE NO/S:

BD 2126/2013

DIVISION:

Civil

PROCEEDING:

Application for appointment of statutory trustee for sale

ORIGINATING COURT:

District Court

DELIVERED ON:

12 August 2014

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2014

JUDGE:

Kingham DCJ

ORDER:

Ms Grant must file an affidavit by another proposed trustee with whom she has no personal connection and who has experience of statutory trusts and consents to the appointment.

Ms Rosenblum is removed as a party to these proceedings.

The directions made on 30 July 2014 are confirmed.

Orders will be issued to give effect to these reasons upon order 1 being complied with.

CATCHWORDS:

REAL PROPERTY – STATUTORY TRUST FOR SALE - Property Law Act 1974 s38 – Application to appoint trustees on statutory trust – where application opposed – where respondent counter-claimed specific performance of an agreement to sell the co-owners’ interest and constructive trust – whether orders would cause great hardship to the respondent – whether application should be refused because of respondent’s proprietary interest or a contractual or fiduciary obligation of the applicant’s – whether any other reason to refuse application – where application granted

COUNSEL:

Ms Grant appeared in person

Ms Hall appeared in person

For a time, Ms Grant and Ms Hall lived as a couple. They purchased a property as joint tenants and moved in together. When their relationship broke down months later, Ms Grant moved out and Ms Hall remained. There is a lengthy history of attempts to reach a settlement about the property and associated debt and expenses. They are in dispute about whether they concluded an enforceable agreement. Ms Grant said they did not and commenced proceedings for orders to sever their interests. Ms Hall seeks to hold Ms Grant to an agreement she alleges they reached on 1 February last year. The proceedings are listed for trial in early October.

Recently, Ms Grant renewed an earlier application to appoint trustees to sell the property. Her application is made under Section 38 of the Property Law Act 1974 (Qld), because their relationship was not long enough to qualify as a de facto relationship under Part 19 of that Act. Under s38, on the application of any co-owner of property, the court may appoint trustees of the property and vest the property in them, subject to encumbrances, to be held on a statutory trust for sale.

The issues are:

1. Should trustees be appointed to sell the property?

2. Who should be appointed trustees?

3. How should the proceeds of sale be dealt with, pending final orders?

1.Should trustees be appointed to sell the property?

The court has the discretion whether or not to make orders under s38.[1] Generally speaking, a co-owner is entitled to orders unless there is a good reason not to make them.[2] Ms Hall argues to grant the…

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 Grant v Hall

Details

AGLC: Grant v Hall [2014] QDC 168
Case: [2014] QDC 168
Decision Date: 12 August 2014

CaseChat Overview and Summary

The parties involved in the case were Grant and Hall, and the dispute revolved around the sale of a property under a statutory trust. The Queensland Supreme Court was tasked with resolving the matter. The central legal issues that the court had to address were whether to grant an application to appoint trustees on a statutory trust, despite opposition, and whether the orders would cause significant hardship to the respondent.

In examining the application to appoint trustees, the court considered the potential impact on the respondent, including whether the orders would cause great hardship or whether there were any contractual or fiduciary obligations of the applicant that would warrant refusal of the application. The court ultimately determined that the application should proceed, but with certain conditions attached. The court required the applicant to file an affidavit from another proposed trustee with relevant experience, who was not personally connected to the applicant. Furthermore, the court decided to remove Rosenblum from the proceedings and confirmed the directions made on 30 July 2014. The court's reasoning was based on the belief that the orders would not cause great hardship to the respondent and that there were no compelling reasons to refuse the application.

The court's decision resulted in specific orders being issued, including the requirement for the applicant to file an affidavit from another proposed trustee and the removal of Rosenblum from the proceedings. These orders were to be implemented once the condition of filing the affidavit was met. The court's decision balanced the interests of both parties and ensured that the statutory trust process could proceed in a fair and transparent manner.

Orders

Orders of the court

1. Ms Grant must file an affidavit by another proposed trustee with whom she has no personal connection and who has experience of statutory trusts and consents to the appointment.

2. Ms Rosenblum is removed as a party to these proceedings.

3. The directions made on 30 July 2014 are confirmed.

Orders will be issued to give effect to these reasons upon order 1 being complied with.

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

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CITATION:	Grant & another v Hall [2014] QDC 168
PARTIES:	GAE ELAINE GRANT (first plaintiff applicant) and PAULINE DOROTHY ROSENBLUM (second plaintiff) v AMBER LOUISE HALL (defendant respondent)
FILE NO/S:	BD 2126/2013
DIVISION:	Civil
PROCEEDING:	Application for appointment of statutory trustee for sale
ORIGINATING COURT:	District Court
DELIVERED ON:	12 August 2014
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2014
JUDGE:	Kingham DCJ
ORDER:	Ms Grant must file an affidavit by another proposed trustee with whom she has no personal connection and who has experience of statutory trusts and consents to the appointment. Ms Rosenblum is removed as a party to these proceedings. The directions made on 30 July 2014 are confirmed. Orders will be issued to give effect to these reasons upon order 1 being complied with.
CATCHWORDS:	REAL PROPERTY – STATUTORY TRUST FOR SALE - Property Law Act 1974 s38 – Application to appoint trustees on statutory trust – where application opposed – where respondent counter-claimed specific performance of an agreement to sell the co-owners’ interest and constructive trust – whether orders would cause great hardship to the respondent – whether application should be refused because of respondent’s proprietary interest or a contractual or fiduciary obligation of the applicant’s – whether any other reason to refuse application – where application granted
COUNSEL:	Ms Grant appeared in person Ms Hall appeared in person