SUPREME COURT OF QUEENSLAND
CITATION:
McPaul v Massignani & Anor [2023] QSC 98
PARTIES:
AMANDA LOUISE McPAUL
(applicant)
v
ENZO TONY MASSIGNANI and LOUISA CATHERINE MASSIGNANI
(respondents)
FILE NO/S:
BS 4219 of 2023
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
11 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
27 April 2023
JUDGE:
Bowskill CJ
ORDERS:
The application for the appointment of statutory trustees for sale under s 38 of the Property Law Act 1974 (Qld) is allowed. The court will hear further from the parties as to the terms of the order to be made, as foreshadowed in paragraph [58] of these reasons.
CATCHWORDS:
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – OTHER MATTERS – TRUSTEES – where the parties became co-owners of a property as tenants in common, with a half interest owned by each of the applicant and the respondents – where the applicant’s expectations about what could be done with and on the property were subsequently thwarted, when the parties learned, after becoming owners of the property, that the property could not be further subdivided and had limited options for building development – where the applicant consequently sought to sell her interest in the property and, being unable to reach agreement with the respondents, applied under s 38 of the Property Law Act 1974 (Qld) for the appointment of a statutory trustee to sell the property – where the respondents opposed the appointment of a statutory trustee, arguing that the applicant was estopped from bringing the application on the basis of conversations they had prior to the purchase as to the property being perfect for their respective interests and a place they could all live during their lifetimes – where the respondents also contended the application was defective because it only sought the appointment of one trustee – whether the Court should make an order for appointment of statutory trustees pursuant to s 38 of the Property Law Act 1974 – whether more than one trustee should be appointed pursuant to s 38(3) of that Act
Property Law Act 1974 (Qld), s 37A, s 38(1), s 38(3), s 40
Barport Pty Ltd v Baum [2019] VSCA 167, considered
Bunnings Group Ltd v Asden Developments Pty Ltd [2014] 1 Qd R 493; [2013] QCA 347, considered
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, considered
Goodwin v Goodwin & Anor [2004] QCA 50, considered
Hogan v Baseden (1997) 8 BPR 15,723, considered
Ngatoa v Ford (1990) 19 NSWLR 72, cited
Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635; [1993] HCA 45, cited
Re Permanent Trustee Nominees (Canberra) Ltd v Coral Sea Resort Motel Pty Ltd [1989] 1 Qd R 314; [1988] QSCFC 3, considered
Tory v Tory [2007] NSWSC 1078, considered
Continue reading McPaul v Massignani
Sign in free to access the full text
- AGLC
- McPaul v Massignani [2023] QSC 98
- Case
- [2023] QSC 98
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the applicant could be estopped from bringing the application for the appointment of a statutory trustee, based on the conversations they had prior to the purchase. The respondents also contended that the application was defective because it only sought the appointment of one trustee, whereas two trustees were required under the Property Law Act 1974 (Qld). The applicants sought to address this contention by proposing a second trustee, Ms Kate Muller, a solicitor employed in Mr Mitchell’s firm. However, the respondents argued that neither trustee was appropriate due to their limited experience and Ms Muller’s lack of independence from Mr Mitchell.
The court dismissed the respondents' argument that the application was defective because it only sought the appointment of one trustee, noting that the applicants had proposed a second trustee. However, the court also noted that Ms Muller was not independent of Mr Mitchell and that another person should be nominated as a trustee. The court proposed to allow the application and make an order under s 38(1) of the Property Law Act, appointing two named persons as trustees of the property, to be held by them on statutory trust for sale. The court will hear further from the parties as to the terms of the order to be made, including the identity of the two named persons to be appointed as trustees, whether any provision should be made in the order for the respondents to have the first right to purchase the applicants' interest, whether the operation of the order should be stayed for a period of time, and any other practical matters in relation to the order.
Orders
Orders of the court
The application for the appointment of statutory trustees for sale under s 38 of the Property Law Act 1974 (Qld) is allowed. The court will hear further from the parties as to the terms of the order to be made, as foreshadowed in paragraph [58] of these reasons.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.