DISTRICT COURT OF QUEENSLAND
CITATION: IBM v TTV (No 2) [2011] QDC 101
PARTIES: IBM
(Plaintiff)
AND
TTV
(Defendant)FILE NO/S: 327/08
DIVISION: Civil
PROCEEDING: Application
ORIGINATING COURT: District Court, Southport
DELIVERED ON: 15 June 2011
DELIVERED AT: Ipswich
HEARING DATE: 8 and 9 March and 18 May 2011
JUDGE: Dorney QC DCJ
ORDERS: 1.That, pursuant to s 333(1)(f) of the Property Law Act 1974, Peter John Sheehy, Solicitor, of Level 24, 239 George Street, Brisbane in the State of Queensland be appointed as a trustee for sale (“trustee”) of the following property, and that such property vest in the trustee for the purpose of that sale: the real property situated at Unit 15, Summerfield, 15/67 Edmund Rice Drive, Southport in the State of Queensland, more particularly described as Lot 15 on GTP 2280, County of Ward, Parish of Nerang, and being all that land contained in Title Reference 17488050.
2.That the trustee be entitled to sell the property by such method as he deems appropriate in the circumstances, including, but not limited to, sale by auction or by private treaty.
3.That in the event of sale by private treaty, the trustee shall determine the appropriate marketing of the property including the listing price from time to time, the appointment of any agent or agents for the sale of the property, and the terms and conditions of such appointment or appointments.
4.That in the event of sale by public auction:
(a)the trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property, and the terms and conditions of such appointment or appointments;
(b)the trustee shall determine the reserve price of the auction after consultation with the auctioneer; and
(c)should either of the parties be the successful bidder at auction, the trustee is authorised to sell to that party without a requirement that that party pay a deposit at the time of the execution of the contract.
5.That in the event that the trustee deems it necessary that money be expended on the property in preparation for its sale, or for the marketing or advertising, then both parties shall contribute equally to such expenses and costs as reasonably requested by the trustee from time to time from them and that, otherwise, both parties shall co-operate fully with the trustee and his agents, shall ensure that the property is kept in a neat, tidy, clean and presentable condition for the purposes of sale at all times and shall ensure that any mortgage payments, rates, upkeep and similar outgoings be paid by the party then residing in the property.
6.That, in relation to the distribution of sale proceeds from the sale of the property, as and when the sale occurs, the proceeds shall be distributed in the following manner and priority:
(a)in payment of all necessary selling costs, including agent’s commissions, legal costs, marketing and advertising costs and all other necessary costs incurred in the…
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- AGLC
- IBM v TTV (No 2) [2011] QDC 101
- Case
- [2011] QDC 101
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the property should be sold by auction or private treaty, and if so, who would bear the costs of such a sale. Additionally, the court needed to decide how the proceeds from the sale should be distributed and whether any joint accounts should be closed and the balances distributed equally between the parties. The court also had to decide whether either party should be ordered to pay the other's costs.
The court found that the property should be sold by a method determined by the trustee, with both parties contributing equally to any necessary expenses. The court also found that the proceeds of the sale should be distributed in a specific order of priority, with the trustee's costs and any secured liabilities being paid before the balance was split equally between the parties. The court found that the parties should retain their existing assets and that there should be no order as to costs.
The court appointed Peter John Sheehy, a solicitor from Brisbane, as trustee for the sale of the property, granting him broad powers to determine the method of sale and the marketing and advertising strategies. The court also ordered the closure of any joint accounts and directed that the remaining balances be paid to the trustee for equal distribution between the parties.
Orders
Orders of the court
1.That, pursuant to s 333(1)(f) of the Property Law Act 1974, Peter John Sheehy, Solicitor, of Level 24, 239 George Street, Brisbane in the State of Queensland be appointed as a trustee for sale (“trustee”) of the following property, and that such property vest in the trustee for the purpose of that sale: the real property situated at Unit 15, Summerfield, 15/67 Edmund Rice Drive, Southport in the State of Queensland, more particularly described as Lot 15 on GTP 2280, County of Ward, Parish of Nerang, and being all that land contained in Title Reference 17488050.
2.That the trustee be entitled to sell the property by such method as he deems appropriate in the circumstances, including, but not limited to, sale by auction or by private treaty.
3.That in the event of sale by private treaty, the trustee shall determine the appropriate marketing of the property including the listing price from time to time, the appointment of any agent or agents for the sale of the property, and the terms and conditions of such appointment or appointments.
4.That in the event of sale by public auction:
(a)the trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property, and the terms and conditions of such appointment or appointments;
(b)the trustee shall determine the reserve price of the auction after consultation with the auctioneer; and
(c)should either of the parties be the successful bidder at auction, the trustee is authorised to sell to that party without a requirement that that party pay a deposit at the time of the execution of the contract.
5.That in the event that the trustee deems it necessary that money be expended on the property in preparation for its sale, or for the marketing or advertising, then both parties shall contribute equally to such expenses and costs as reasonably requested by the trustee from time to time from them and that, otherwise, both parties shall co-operate fully with the trustee and his agents, shall ensure that the property is kept in a neat, tidy, clean and presentable condition for the purposes of sale at all times and shall ensure that any mortgage payments, rates, upkeep and similar outgoings be paid by the party then residing in the property.
6.That, in relation to the distribution of sale proceeds from the sale of the property, as and when the sale occurs, the proceeds shall be distributed in the following manner and priority:
(a)in payment of all necessary selling costs, including agent’s commissions, legal costs, marketing and advertising costs and all other necessary costs incurred in the sale;
(b)in discharge of any liabilities secured against the property by registered bill of mortgage;
(c)in payment of the trustee’s costs (wherein the trustee is entitled to charge for all reasonable costs and disbursements incurred by the trustee for the payment of his fees and charges, arising from the duty imposed upon him pursuant to these orders);
(d)as to the balance of the remaining sale proceeds, in distribution equally between the plaintiff and the defendant.
7.That all joint accounts, including that described as the National Australia Bank “Homestyle Capital Lending” Account, be closed by the parties and that the remaining balance payable, if any, by the Bank be paid to the trustee to be distributed equally between the plaintiff and defendant.
8.That each party have liberty to apply with respect to the carrying out of these orders, with notice to be given to the solicitors for the other party by way of 2 business days’ notice in writing to the other.
9. Save and except for the property otherwise dealt with in these orders, the parties are each entitled to, and will retain as his or her own property absolutely, all assets and financial resources of whatever description and wheresoever situated of which that party has presently in his or her possession or control as at the date of these orders, including but not limited to motor vehicles, shares, furniture (and other such chattels) and superannuation interests.
10.That there be no order as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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