McPaul v Massignani (No 2)

[2023] QSC 118

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 470

Stibbard-Leaver v Leaver [2021] NSWSC 65

COUNSEL:

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

1. 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.

   [1]McPaul v Massignani & Anor [2023] QSC 98.

2. 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.

3. 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.

4. 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…