Hambleton v Byrne

[2012] QDC 222

[2012] QDC 222

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1845 of 2012

DAVID JAMES HAMBLETON	Applicant
and
LEEANNE BYRNE AND ANOR	Respondents

BRISBANE

..DATE 13/08/2012

ORDER

CATCHWORDS
Property Law Act 1974 s 38
Uniform Civil Procedure Rules r 116

Appointment of statutory trustees for sale at instance of trustee in bankruptcy of a co-owner - no appearance by co-owners who had been served by substituted means previously approved by the court - uncertain whether they knew of the adjourned hearing date - appointment made, but implementation of order deferred until service (by the approved means) of a copy of the order and the elapsing of a 7 day period within which respondents might approach the court
HIS HONOUR: The court makes an order in terms of the initialled draft. It appoints two representatives of a firm of chartered accountants trustees for sale of a residential property at Edens Landing pursuant to section 38 of the Property Law Act 1974.

The applicant is the trustee in bankruptcy of the first respondent.  He and the second respondent are registered as owners of the property as joint tenants.  It is necessary for the applicant to have recourse to the first respondent's equity in the property for purposes of the bankruptcy. 

He has encountered no cooperation whatsoever from the respondents in achieving a sale.  Their obstructive attitude in respect of service of the application persuaded Judge Dorney to permit alternative arrangements for service under rule 116.  The material read today shows that those have been attended to. 

The court can be confident that the respondents know of the application.  Neither has appeared today when called.

...

HIS HONOUR:  The exchange that has just taken place leaves a question mark as to whether the respondents can be taken not only to know that the application is pending, but also as  aware of today as the hearing date.  As things appear for the moment, when service occurred by various means on various days last month the respondents were not advised that today was the hearing date for the application fixed by Judge McGill on the 26th of June 2012.  The matter had been adjourned till then on the original hearing date of the 30th of May 2012 by Judge Rafter.

This complication, in my view, under the circumstances, need not stand in the way of the court making today an order to resolve the application. It is of a kind to which there is really no answer as the authorities collected by Mr McEniery such as Re Permanent Trustee Nominees (Canberra) Limited [1989] 1 Queensland Reports 314 indicate. It's really only circumstances such as an agreement of the parties that rights such as those in section 38 not be pursued that will stand in the way of the court making an order. It's no bar that the property market is depressed, for example.

Of course, the respondents have the ordinary right of every litigant in whose absence a court order is made which affects them to approach the court to show that some other, or no order ought to have been made.  In the circumstances the court now ought to expressly recognise that situation.

The order proposed is a sparse one, simply appointing the proposed trustees and placing them in charge of the sale.  It says nothing about the second respondent in particular, she not being a bankrupt, being entitled to be purchaser in a sale.  But one may assume that if she offered the best price the trustees, whose consent the court has, would accept that offer.

There is a mortgage to the ANZ Banking Group registered against the title.  The court's told that what is owing is a modest sum of $20,000 or thereabouts, which is small indeed in relation to what's indicated to be the value of the property,
according to a local real estate agent: something like $380,000.  The involvement of the Bank in the proceeding to protect its interest seems to me unnecessary.  It will not have to release the mortgage unless paid out.

The order deals with costs of the applicant by ordering that they "be included in the costs of the sale of the property" which are to be paid from the net proceeds of sale and net income.  There's no provision in the order for those costs to be assessed.  I am content with an outcome in which the respondents, who know from the terms of the application that what's indicated is what would be sought in relation to the costs.  They can take such steps as they may be advised to complain about the extent of costs claimed by the applicant by approaching the court.

What I propose is that there be added to your draft order as paragraph 6 that no action be taken in implementation of this order until seven days after service of a copy of it on the respondents by the means set out in the order of his Honour Judge Dorney QC of 10th of July 2012.

...

HIS HONOUR:  And there should also be a paragraph 7: "Liberty to the respondents to apply within the said period of seven days."  That specifically invites them to come back.

...

HIS HONOUR:  I had better write in the draft, "No action be taken in the implementation of this order till seven days after service of a copy of it."

...

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