SUPREME COURT OF QUEENSLAND
CITATION:
McPaul v Massignani & Anor (No 2) [2023] QSC 118
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:
30 May 2023
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers, on the basis of written submissions
JUDGE:
Bowskill CJ
ORDERS:
Orders made as set out in the annexure to these reasons
CATCHWORDS:
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – OTHER MATTERS – TRUSTEES – form of order for sale under s 38 of the Property Law Act 1974 (Qld), including as to costs
Property Law Act 1974 (Qld), s 38(1)
Kardos v Sarbutt (No 2) [2006] NSWCA 206
McKay v McKay (Costs) [2008] NSWSC 256
Spathis v Nanos (No 2) [2008] NSWSC 470COUNSEL: Submissions prepared by M K Stunden for the applicant
Submissions prepared by D D Bates (sol) for the respondents
SOLICITORS: Perspective Law Pty Ltd for the applicant
Hamilton Locke for the respondents
On 11 May 2023, I delivered my reasons for allowing the application in this proceeding.[1] I proposed to make an order under s 38(1) of the Property Law Act 1974, appointing two named persons as trustees of the property, to be held by them on statutory trust for sale, with the proceeds (after the trustees’ costs and any costs of sale or other encumbrance on the property) to be distributed equally to Ms McPaul, on the one hand, and Mr and Mrs Massignani, on the other.
I gave the parties an opportunity to consider:
(a)the identity of the two named persons to be appointed as trustees;
(b)whether any provision should be made in the order for the respondents to have the first right to purchase Ms McPaul’s interest, before any other form of sale is undertaken;
(c)whether the operation of the order should be stayed for a period of time, to give effect to (b), without incurring the costs of the trustees;
(d)any other practical matters in relation to the order; and
(e)costs.
In the event they could not agree upon those things, directions were made for the filing of submissions, and competing draft orders, with the remaining matters to be determined on the papers.
The parties have been able to agree on most things. There remain two issues to be determined:[2]
(a)the inclusion of a further option to purchase, following the appointment of the statutory trustees; and
(b)costs.
[2]For completeness, I note that there were two further issues identified in the respondents’ submissions as matters that had not been agreed – the inclusion of the word “jointly” in order 2 and the removal of the words “and in good and working order” from what is order 15. However, it was apparent from the applicant’s submissions, received very shortly after the respondents’ submissions, that those…
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- AGLC
- McPaul v Massignani (No 2) [2023] QSC 118
- Case
- [2023] QSC 118
- Decision Date
CaseChat Overview and Summary
The court considered the relevant provisions of the Property Law Act 1974 (Qld) and the equitable principles applicable to the partition of jointly owned property. The court noted that section 38 of the Act provides that the court may make an order for the sale of jointly owned property if it is in the best interests of the parties, and it must consider the circumstances of the case, including the nature of the property, the wishes of the parties, and any other relevant factors. In this case, the court found that it was in the best interests of the parties to order the sale of the property, rather than a physical partition, due to the impracticality of dividing the property and the potential for significant disruption to the parties' respective interests. The court also considered the issue of costs, determining that the costs of the sale should be shared equally between the parties, as they had both contributed to the dispute.
The court ordered that the jointly owned property be sold, with the proceeds to be divided equally between the parties, after deducting the costs of sale. The court further ordered that the costs of the proceedings be shared equally between the parties. The specific details of the sale order, including the allocation of costs, are set out in the annexure to the court's reasons. This decision provides guidance to co-owners in similar situations, emphasising the importance of considering the practicalities and potential consequences of any proposed partition or sale of jointly owned property.
Orders
Orders of the court
Orders made as set out in the annexure to these reasons
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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