Jandlee Pty Ltd v Haskings

DISTRICT COURT OF QUEENSLAND

CITATION:

Jandlee Pty Ltd v Haskings [2013] QDC 320

PARTIES:

JANDLEE PTY LTD
(applicant)

v

PAUL HASKINGS
(respondent)

FILE NO/S:

4072/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

18 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 November 2013

JUDGE:

Butler SC DCJ

ORDER:

The order of the court is:

Pursuant to section 38 of the Property Law Act 1974, Christopher Wyatt Neville and Brooke Pugh be appointed trustees of the land and improvements situated at 42 Austin Road, Crows Nest in the State of Queensland, more particularly described as Lot 2 on Survey Plan 195550, County of Cavendish, Parish of Djuan, Title Reference 5065696;1.   

The said property vest in Christopher Wyatt Neville and Brooke Pugh subject to encumbrances affecting the entirety, but free from encumbrances affecting any individual shares, to be held by them on statutory trust for sale on the terms set out in section 37A of the Property Law Act 1974;2.   

Either party is at liberty to bid for or purchase the property whether at auction or otherwise on such terms, as are appropriate, as to setting off or accounting for the purchase money or any part of the purchase money instead of paying the same;3.   

I will hear the parties as to costs.4.   

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – where the applicant and respondent are tenants in common – where the applicant seeks the appointment of statutory trustees for sale of the property pursuant to s 38 of the Property Law Act 1974 –where there is a discretion to refuse relief – whether the exercise of discretion is warranted.

Property Law Act 1974 (Qld), ss 38, 42

Callahan v O’Neill [2002]NSWSC 877.

Ex parte Einbart Pty Ltd [1982] Qd R 398.

Re Permanent Trustee Nominees (Canberra) Ltd [1989] 1 Qd R 314.

Williams v Legg (1993) 29 NSWLR 687.

COUNSEL:

R T Whiteford for the applicant

P Van Eps for the respondent

SOLICITORS:

Murphy Schmidt as town agents for Taylors Solicitors for the applicant

Aden Lawyers for the respondent

1. This is an application for the appointment of trustees pursuant to the provisions of s 38 of the Property Law Act 1974 (“the Act”).

1. The applicant and respondent are the owners, as tenants in common, of a 52.5 ha property at Austin Road, Crows Nest.  David Haskings is a director of the applicant company and brother of the respondent, Paul Haskings.

1. The applicant and respondent conducted a flower growing business in partnership on the property until later 2008.  Thereafter the applicant and Damien Haskings, the respondent’s son, continued the flower growing until January 2012.  The subject property was not partnership property and the partnership agreement did not restrict the sale of the property. 

1. The applicant continued using the property for flower growing until September 2013.  The respondent currently resides in a house on the property. 

1. The applicant seeks the appointment of trustees for sale, arguing that…