Malouf & Anor v Cameron & Ors

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.