Malouf & Anor v Cameron & Ors

Case [2024] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Malouf & Anor v Cameron & Ors [2024] QSC 3

PARTIES:

MICHAEL CALILE MALOUF

(applicant)

HEIDI BELINDA MIDDLETON

(applicant)

v
JILL ALEXIA CAMERON

(first respondent)

NOOSA NORTH SHORE INVESTMENTS PTY LTD

(second respondent)
IAN MILNE DIXON CAMERON
(third respondent)

FILE NO:

BS11830 of 2023

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 January 2024

DELIVERED AT:

Brisbane

HEARING DATE:

6 and 8 November 2023

JUDGE:

Sullivan J

ORDER:

CATCHWORDS:

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – TRUSTEES – where the applicants seek the appointment of trustees for the sale of land pursuant to s 38 of the Property Law Act 1974 (Qld) – where pursuant to s 40 of the Property Law Act 1974 (Qld) the applicants seek that the applicants and the first respondent be allowed to purchase the land on any sale by the trustees and obtain a credit for the purchase price corresponding to the individual interests – where the applicants own a one-half share in the land – where the first respondent owns a one-half share in the land – where the third respondent opposes the orders sought to be made

Conveyancing Act 1919 (NSW), s 66G
Limitation of Actions Act 1974 (Qld)

Property Law Act 1974 (Qld), s 37, s 37A, s 38, s 40, s 43

Trusts Act 1973 (Qld), s 90

Bunnings Group Ltd v Asden Developments Pty Ltd [2014] 1 Qd R 493, cited
Callahan v O’Neill [2002] NSWSC 877, cited

Ex parte Eimbart Pty Ltd [1982] Qd R 398, cited
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411, cited
Foundas v Arambatzis [2020] NSWCA 47, cited
Goodwin v Goodwin [2004] QCA 50, cited
Green v Johnston [2015] QSC 81, cited

Groch v Knights [2018] NSWSC 1365

Lewin v Lewin [2019] NSWSC 380, cited

McLaughlin v Cunningham [2023] NSWSC 350, cited
McPaul v Massignani & Anor [2023] QSC 98, considered
Ngatoa v Ford (1990) 19 NSWLR 72, cited
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, cited

Ranger v Ranger [2009] QCA 226, cited

Re Permanent Trustee Nominees (Canberra) Ltd v Coral Sea Resort Motel Pty Ltd [1989] 1 Qd R 314, cited
Schnytzer v Wielunski [1978] VR 418, cited
Simonidis Steel Lawyers Brisbane Pty Ltd v Johnston & Ors;
Williams v Legg (1993) 29 NSWLR 687, cited
Wilson v Strzelcykowski [2016] QCA 227, cited

COUNSEL:

J Sargent for the applicants
The respondents appeared on their own behalf

SOLICITORS:

Hickey Lawyers for the applicants

The respondents appeared on their own behalf

Introduction and Parties

  1. The applicants, Mr Michael Malouf and Ms Heidi Middleton, seek, inter alia, the following principal relief:

    (a)

    pursuant to s 38 of the Property Law Act 1974 (Qld) (the “Act”), the appointment of a Mr O’Kearney and a Mr Elliott as trustees for sale of land at

Continue reading Malouf & Anor v Cameron & Ors

Sign in free to access the full text

Details
AGLC
Malouf & Anor v Cameron & Ors [2024] QSC 3
Case
[2024] QSC 3
Decision Date

CaseChat Overview and Summary

Malouf & Anor v Cameron & Ors involved a dispute concerning the partition of land, specifically the appointment of trustees for the sale of a property under section 38 of the Property Law Act 1974 (Qld). The applicants sought the appointment of trustees to sell the property, as well as an order allowing themselves and the first respondent to purchase the land and receive a credit corresponding to their individual interests. The third respondent opposed the orders sought. The applicants owned a one-half share in the property, while the first respondent also owned a one-half share. The third respondent argued that the proposed order was unfair as it would not allow them to benefit from a credit for the purchase of the land.

The court had to decide whether the proposed trustees were suitable for the appointment under section 38 of the Act and whether the applicants and the first respondent were entitled to the relief sought under section 40 of the Act. The court also had to consider the arguments of the third respondent that the proposed orders were unfair. The applicants provided affidavit material supporting the proposed trustees as appropriate persons for the appointment. The court found that the affidavit material supported the proposed trustees as being appropriate persons to be appointed under a section 38 order, as they had provided their written consent. The court adjourned the hearing of the section 40 relief to allow further submissions to be made on the issue of fees, costs, and expenses of the proposed trustees. The court also provided an opportunity for Arcobaleno Pty Ltd to consider the proposed order and indicate if it was prepared to provide the undertaking. The court planned to hear the parties on costs after orders were made.

The court appointed Glenn Thomas O’Kearney and Timothy Elliott as trustees for the sale of the property, subject to encumbrances affecting the entirety but free from encumbrances affecting any undivided shares. The trustees were authorised to distribute the proceeds of sale in priority, with the applicants’ and first respondent’s costs of the application to be paid out of the proceeds of sale before distribution. The court adjourned the hearing of the section 40 relief to a date to be fixed, to allow further submissions to be made on the issue of fees, costs, and expenses of the proposed trustees. The court provided an opportunity for Arcobaleno Pty Ltd to consider the proposed order and indicate if it was prepared to provide the undertaking. The court planned to hear the parties on costs after orders were made.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The fifth basis for opposing the relief is that the proposed s 40 order under the Act is said to be unfair as it would not allow NNS or Mr Cameron Senior to have the benefit of a credit for the purchase of the land and, accordingly, they would be prejudiced.Background facts The Cameron family has had a part ownership of the Noosa Land for some decades. The evidence before the Court does not adequately disclose the full ownership history of the Noosa Land. However, it is apparent that some form of Cameron family ownership seems to have existed at least from 1979. On or about 17 April 1980, the National Australia Bank registered a mortgage over the entirety of the title of the Noosa Land. In 1998, Ms Cameron and Mr Cameron Senior separated. On 26 May 1999, the National Australia Bank registered mortgage was transferred to a company called Arcobaleno Pty Ltd. This was done through a registered transfer of the mortgage. At this date, one or both of Mr Cameron Senior and Ms Cameron were co-owners of the Noosa Land, together with persons from outside of the Cameron family. In addition to the mortgage transfer document, there was an accompanying Deed of Covenant entered into between the National Australia Bank Limited and Arcobaleno Pty Ltd. It, in part, provided:“(1)The Transferee agrees to purchase and the Bank agrees to transfer to the Transferee all of the Bank’s interest, rights and privileges as Mortgagee under that mortgage.(2)The consideration for the transfer will be the balance owed by the mortgagors to the Bank on the date of completion, which is to be no later than two days after the date of this Deed is completed by both parties.(3)The consideration is to be paid in exchange for the following documents duly completed:- Transfer of Mortgage- Statutory Declaration of Service of Notice of Default and copy of notice- Statutory Declaration of Service of Notice of Intention to exercise Power of Sale and copy of such notice…” The consideration stated in the mortgage transfer document was $122,276. Presumably, this is what was owed by the mortgagors to the National Australia Bank at the time. By 2000, Ms Cameron had commenced Family Court of Australia proceedings against Mr Cameron Senior. On 25 January 2002, his Honour, Justice Warnick of the Family Court made orders in that proceeding. Part only of those orders is exhibited to an affidavit of Mr Cameron Senior. That part of the order which is exhibited provides, in effect, inter alia, that the Cameron interest in the Noosa Land was to be transferred solely into the name of Ms Cameron. The Order provided that Ms Cameron was to then hold a public auction for the sale of the interest after it had been registered in her name. A Queensland Land Title Registry search dated 2 August 2023 shows that in 2015 Ms Cameron held a 50 per cent interest in the Noosa Land. As at the date of the search, the ownership of the Noosa Land was as follows:(a)Jill Alexia Cameron - Tenants in Common - one half;(b)Kay Teresa Cohen - Tenants in Common - one sixth;(c)Janice Marie Herron - Tenants in Common - one sixth;(d)Sharon Janet Pie - Tenants in Common - one sixth.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am willing to hear the parties further on a form of order which could be made in accordance with these reasons to address this issue. I will adjourn the hearing of the s 40 relief to allow further submissions to be made. Such submissions will also have to confront the issue that a number of the sums identified in paragraph [137] above will not necessarily be specifically fixed in sums certain at the time of settlement.Conclusion I find that the affidavit material supports both of the proposed trustees as being appropriate persons to be appointed under a s 38 order. They have both provided their written consent. Before making any final order, I will hear from the parties as to whether any further specific order should be made in respect of the fees, costs and expenses of the proposed trustees. I have otherwise modified the proposed order into a form which I would be prepared to make. That proposed order is Annexure “A” to these reasons. I will provide an opportunity to Arcobaleno Pty Ltd to consider the proposed order and then indicate if it is prepared to provide the undertaking. After orders are made, I will hear the parties on costs. Pursuant to section 38 of the Property Law Act 1974 (Qld) (Act), Glenn Thomas O’Kearney and Timothy Elliott are appointed as trustees (Trustees) for the sale of the property described as Lot 1728 on Crown Plan M37789, Title Reference 12376116 situated at 337 Teewah Beach Road, Noosa North Shore, in the State of Queensland (Property). The Property vest in the Trustees subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by the Trustees on statutory trust for sale on terms set out in section 37A of the Act. The Trustees be authorised to: That on completion of the sale of the Property, the proceeds of sale will be distributed in priority as follows: The Trustees have liberty to apply on 5 days’ notice in writing to any interested party. The applicants’ and first respondent’s costs of this application be paid out of the proceeds of sale of the Property before distribution in accordance with paragraph 4(f) above. The s 40 Property Law relief sought in the originating application be adjourned to a date to be fixed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.