Hamilton v Trustee for the Bankrupt Estate of Bradley Thomas Halbert

[2023] QSC 151

SUPREME COURT OF QUEENSLAND

CITATION:

Hamilton & Ors v Trustee for the Bankrupt Estate of Bradley Thomas Halbert & Ors [2023] QSC 151

PARTIES:

ALAN JOHN HAMILTON

(first applicant)

MICHEAL BAUERFELD and STEPHANIE HAERPFER

(second applicants)

SEAN JOSEPH JACKSON AS TRUSTEE UNDER INSTRUMENT 709560779 & 709560790

(third applicant)

ALLISON JANE HALBERT

(fourth applicant)

ALAN ROBERT VAUGHAN and MARIA ROSARIA VAUGHAN

(fifth applicants)

RUSSELL PETER CRAWLEY

(sixth applicant)

ROBERTO ALOIA and DIONE ALOIA

(seventh applicants)

RICHARD MICHAEL JONES and FRANCINE MARY JONES

(eighth applicants)

DAVID EDWARD NEWSHAM and MARY ALMA NEWSHAM

(ninth applicants)

AILEEN GREEN and STEVEN JOHN MCDONALD

(tenth applicants)

JOHN NOWLAN KELLY

(eleventh applicant)

BENEFIT MANAGEMENT SERVICES PTY LTD AS TRUSTEE UNDER INSTRUMENT 716509837 &716509835

(twelfth applicant)

STEVEN IOANNOU

(thirteenth applicant)

GLEN ADAM FARLEY

(fourteenth applicant)

MARTJULS PTY LTD AS TRUSTEE UNDER INSTRUMENT NO.717340114

(fifteenth applicant)

MICHAEL JAMES WOODS and MAXINE KATHLEEN WOODS AS TRUSTEE UNDER INSTRUMENT  718812986

(sixteenth applicants)

DOWNIE AND BYRNE LIFETIME SUPERFUND CT PTY LTD AS TRUSTEE UNDER INSTRUMENT 718902412

(seventeenth applicant)

JOSHUA REGINALD IOVANELLA

(eighteenth applicant)

DAMIEN ANTHONY BOICOS and MICHELLE JEAN BOICOS

(nineteenth applicants)

KATHRYN SARAH KHIROYA

(twentieth applicant)

CECILIA MARGARET BLAKE and MARK BLAKE

(twenty-first applicants)

DINO GARBUIO AS PERSONAL REPRESENTATIVE UNDER INSTRUMENT 720170640

(twenty-second applicant)

ANASTASIA MANENDIS and ANGELIQUE LOUISE BOURNE and ADAM TERRY JOSEPH TALBOT AS PERSONAL REPRESENTATIVES UNDER INSTRUMENT 721514391

(twenty-third applicants)

GARY KAMALLE DABBOUSSEY AS PERSONAL REPRESENTATIVE UNDER INSTRUMENT 721918257

(twenty-fourth applicant)

v

TRUSTEE FOR THE BANKRUPT ESTATE OF BRADLEY THOMAS HALBERT

(first respondent)

WESTPAC BANKING CORPORATION AS MORTGAGEE IN POSSESSION OF THE INTEREST OF GAVIN CHARLES BIRD and LEANNE SAMANTHA BIRD HELD IN LOT 38 ON SP327451
(second respondent)
THREE SISTA'S PTY LTD

(third respondent)

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

(fourth respondent)

FILE NO/S:

269 of 2023

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore on 10 May 2023

DELIVERED AT:

Cairns

HEARING DATE:

10 May 2023

JUDGE:

Henry J

ORDER:

1. Pursuant to section 38 Property Law Act 1974 (Qld), Anthony James Jonsson and Cameron Alexander Crichton of Grant Thornton Australia Limited, Level 13, Cairns Corporate Tower, 15 Lake Street, Cairns Queensland 4870 be appointed trustees of the land described as Lot 38 on Survey Plan 327451, Local Government of Cairns Regional Council, Title Reference 51304051 and situated at 7 – 27 McLachlan Street, Manunda Qld 4870 (“the land”) on statutory trust for sale.

2.   The land thereupon vest in Anthony James Jonsson and Cameron Alexander Crichton (“the trustees”) subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares to be held by them upon trust to sell the same. On completion of any sale:

a.   funds received by the trustees shall be distributed in the following order:

  i.   payment of selling costs and expenses;

  ii.   payment of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings paid or payable for the benefit of the co-owners;

  iii.   then in remuneration of the trustees in respect of the sale as provided for by 5 below; and

b.   After such distributions are completed the remaining balance of the sale proceeds be held upon trust for the benefit of the co-owners in shares proportionate to their interest in the land.

3.   That the trustees be at liberty to sell the land by auction or by private sale.

4.   That Anthony James Jonsson and Cameron Alexander Crichton’s fees for their services as trustees charged in accordance with the rates attached to their consent which was filed with the applicant’s Originating Application be paid from the proceeds of the sale of the land.

5.   The applicants’ costs of the application be paid from the proceeds of the sale of the land assessed on an indemnity basis.

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – OTHER MATTERS – TRUSTEES – where the Plaza Palms Resort is the subject of body corporate ownership – where there are a multitude of co-owners holding co-ownership – where the scheme resolved by way of resolution to terminate – where application to this Court was made to appoint a statutory trustee for sale pursuant to s 38 Property Law Act (Qld) – where consent from every co-owner was not able to be obtained – where the application was granted
Property Law Act (Qld) s 38
Re Permanent Trustee Nominees (Canberra) Ltdv Coral Sea Resort Motel Pty Ltd [1989] 1 Qd R 314
Wilson v Strzelcykowski (2016) 78 MVR 1106

COUNSEL:

C Ryall for the applicants

No appearance for the respondents

SOLICITORS:

WGC Lawyers for the applicants

No appearance for the respondents

1. HENRY J:  The Plaza Palms Resort in Manunda was the subject of body corporate ownership in which, in effect, a multitude of co-owners had co-ownership.  With the passage of time, it appears it was no longer attractive for the co-owners to continue to operate through that ownership structure.  Indeed, the decline in the resort appears to have flatlined about four to five years ago, there having been no one in residence since then, bar a caretaker. 

2. The scheme resolved by way of resolution without dissent back in February 2021 to terminate, but it remained for an application to this Court to be made to appoint the statutory trustee for sale pursuant to s 38 Property Law Act (Qld). The delay since the termination resolution in making today’s application is largely a product of the time it took to obtain a new survey plan and require various consents, including from mortgagees.

3. By the time of the filing of the application, that left four owners swinging as either not being able to be found or not having confirmed their consent to the application.  They were, as at least their identities were then understood, named as respondents.  Further progress has occurred since and of the owners of those units, there is really only one in respect of whom service has not been affected and there could be any residual concern that there theoretically could be an owner who would want to resist today’s order.  I say theoretically because of the inherent improbability that a dilapidated resort that everyone is obviously determined to do something about selling is likely to be the subject of any desire by a continuing owner for there to be a preservation of the status quo rather than the sale of the premises. 

4. The right to seek appointment of a statutory trustee for sale is very much an instrument of co-ownership and indeed an integral ingredient of the co-owner’s proprietary interest, as was observed, for example, in Wilson v Strzelcykowski (2016) 78 MVR 1106. Whilst the power in s 38 is not to be exercised as virtually mandatory, the very nature of co-ownership ordinarily trends strongly in favour of the grant of an application of the present kind, see Re Permanent Trustee Nominees (Canberra) Ltdv Coral Sea Resort Motel Pty Ltd [1989] 1 Qd R 314, 321.

5. What then of the dilemma remaining as to the one unserved and seemingly unknown respondent swinging, namely, Three Sistas Pty Ltd?  That company has only one named shareholder and director, Janet Guthrie.  It actually previously carried on business as a manager of the former group title scheme and is the subject of an administrative deregistration procedure being conducted by ASIC.  Service was attempted upon the company by delivery to its registered office, but the address turned out to be incorrect.

6. Ms Guthrie once lived in one of the units of the complex but has not done so for years, rather like most of the former owners.  Evidence shows the ABC has actually reported the murder of a Janet Guthrie.

7. Section 38(5B) provides:

   “Where any of the co-owners is a person not of full age or a person who cannot be found or ascertained, or as to whom it is uncertain whether the person is living or dead, the trustees may act on behalf of the person, and retain land or other property to represent the person’s share.”

8. This appears to be a provision apt to the present dilemma.  We have a company, the subject of de-registration procedure, which does not have an accurately registered office, and whose one name named shareholder and director long ago ceased residing at the property and may well be dead.

9. In considering whether subsection (5B) meets these circumstances, it is important to bear in mind that this application is not to determine the rights of the parties.  It merely deals with the administration of the property.  In that sense, it is analogous to the appointment of a receiver to partnership property where, of course, an order can be made in the absence of a partner in appropriate circumstances.  Here there is little real scope for any of the owners to oppose the sale and there is no reason to anticipate it is likely that the missing respondent would do so given the factual circumstances prevailing.

10. But in any event, those factual circumstances leave me confident that subs (5B) does apply because the relevant co-owner, a company, cannot be found.  I am fortified in that conclusion by the knowledge that the one person who might have assisted, its sole shareholder and director, has long left the property in question and may well be deceased.  Accordingly, I am quite satisfied that the trustees to be appointed may act on behalf of that company and retain the land or other property, or the proceeds of sale in this case, to represent the person’s share.

11. The proposed appointees are professionals apt to appointment, and their proposed fees are consistent with ordinary commercial expectations in this context.  So I accept they are appropriate candidates for appointment with a view to them holding the property on statutory trust for sale, and being at liberty to sell by auction or private sale as they deem fit, being entitled to have their services remunerated by the proceeds of the sale which, as with the costs of this application, are plainly appropriate for deduction from the overall proceeds before any distribution.  It is in the combined interests of the future beneficiaries of the trust, that is to say, the former co-owners, that they share equally in the cost of the task at hand.

12. I order as per the amended draft order signed by me and placed with the papers.