Muller v Zielonkowsky - [2006] QSC 265

SUPREME COURT OF QUEENSLAND

CITATION:

Muller v Zielonkowsky [2006] QSC 265

PARTIES:

RAYMOND NORMAN MULLER
(applicant)
v
ADELE ZIELONKOWSKY

(respondent)

FILE NO/S:

BS10405 of 2005

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

20 September 2006

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2006

JUDGE:

Mullins J

ORDER:

1.          Subject to order 2, it is declared that Raymond Norman Muller and Adele Zielonkowsky are the beneficial owners of Lot 36 on RP114265 in the County of Stanley Parish of Redland (“the property”) in the respective interests of nineteen-twentieths and one-twentieth.

It is ordered that:

2.        The applicant indemnify the respondent in respect of any moneys due under registered mortgage number 700883860 and all rates, insurances and other outgoings payable in respect of the property.

3. Paul Crispian Kendall and Daniel John Hillier (“the trustees”) be appointed trustees of the property pursuant to s 38 of the Property Law Act 1974 to hold the property on the statutory trust for sale (which is altered to the extent necessary to give effect to order 2) and that the property vest in the trustees.

4.        The applicant be permitted to purchase the property from the trustees without the need for the trustees to sell the property by auction or to require the applicant to pay a deposit on account of such purchase.

5.        Liberty to either party or the trustees to apply on 2 days’ notice in writing to any interested person.

6.        The respondent pay the applicant’s costs of the application to be assessed.

CATCHWORDS:

EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – where parties in de facto relationship purchased real property as joint tenants – where parties borrowed most of the purchase price which was secured by mortgage – where close to equal contributions by the parties to the purchase repayments under the mortgage and other outgoings up until date of separation – where parties failed to negotiate property settlement upon separation – where respondent unable to be located – where applicant rented the property and paid all outgoings in respect of the property – where outgoings exceeded rent – declaration sought as to the extent of the parties’ interests in the property – where constructive trust imposed to reflect beneficial entitlement at time of separation

REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – QUEENSLAND – whether applicant’s solicitor should be appointed as statutory trustee for sale – independent trustees appointed

Property Law Act 1974 s 37A, s 38, s 40, s 42

Baumgartner v Baumgartner (1987) 164 CLR 137

Muschinski v Dodds (1986) 160 CLR 583

COUNSEL:

DL Kellie for the applicant

No appearance for the respondent

SOLICITORS:

Bickell & MacKenzie for the applicant

No appearance for the respondent

MULLINS J: The applicant and the respondent are the registered owners as joint tenants of Lot 36 on RP114265 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Muller v Zielonkowsky

Details

AGLC: Muller v Zielonkowsky [2006] QSC 265
Case: [2006] QSC 265
Decision Date: 20 September 2006

CaseChat Overview and Summary

The dispute in Muller v Zielonkowsky involves a de facto relationship where the parties purchased real property as joint tenants. The relationship ended, and the parties failed to negotiate a property settlement. The applicant, Raymond Norman Muller, sought a declaration regarding the beneficial interests in the property and the appointment of a statutory trustee for sale. The respondent, Adele Zielonkowsky, could not be located. The court was required to determine the extent of the parties' beneficial interests in the property, whether a constructive trust should be imposed, and if the applicant's solicitor should be appointed as the statutory trustee for sale.

The court found that the property was held on a constructive trust to reflect the beneficial entitlement of the parties at the time of their separation. The court acknowledged the close to equal contributions by both parties to the purchase repayments and other outgoings, which led to the imposition of the constructive trust. The court also rejected the appointment of the applicant's solicitor as the statutory trustee for sale, opting instead for independent trustees as required by the Property Law Act 1974. The court considered the interests of both parties and the need for impartiality in the sale process.

The court declared that the parties are the beneficial owners of the property in respective interests of nineteen-twentieths and one-twentieth. The applicant is ordered to indemnify the respondent for any outstanding mortgage and outgoings. Independent trustees are appointed to hold the property on a statutory trust for sale, with the applicant having the liberty to purchase the property directly from the trustees. The respondent is ordered to pay the applicant's costs of the application. This decision ensures that the property is managed fairly and the interests of both parties are protected during the sale process.

Orders

Orders of the court

1. Subject to order 2, it is declared that Raymond Norman Muller and Adele Zielonkowsky are the beneficial owners of Lot 36 on RP114265 in the County of Stanley Parish of Redland (“the property”) in the respective interests of nineteen-twentieths and one-twentieth.

It is ordered that:

2. The applicant indemnify the respondent in respect of any moneys due under registered mortgage number 700883860 and all rates, insurances and other outgoings payable in respect of the property.

3. Paul Crispian Kendall and Daniel John Hillier (“the trustees”) be appointed trustees of the property pursuant to s 38 of the Property Law Act 1974 to hold the property on the statutory trust for sale (which is altered to the extent necessary to give effect to order 2) and that the property vest in the trustees.

4. The applicant be permitted to purchase the property from the trustees without the need for the trustees to sell the property by auction or to require the applicant to pay a deposit on account of such purchase.

5. Liberty to either party or the trustees to apply on 2 days’ notice in writing to any interested person.

6. The respondent pay the applicant’s costs of the application to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Muller v Zielonkowsky [2006] QSC 265
PARTIES:	RAYMOND NORMAN MULLER (applicant) v ADELE ZIELONKOWSKY (respondent)
FILE NO/S:	BS10405 of 2005
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	20 September 2006
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2006
JUDGE:	Mullins J
ORDER:	1. Subject to order 2, it is declared that Raymond Norman Muller and Adele Zielonkowsky are the beneficial owners of Lot 36 on RP114265 in the County of Stanley Parish of Redland (“the property”) in the respective interests of nineteen-twentieths and one-twentieth. It is ordered that: 2. The applicant indemnify the respondent in respect of any moneys due under registered mortgage number 700883860 and all rates, insurances and other outgoings payable in respect of the property. 3. Paul Crispian Kendall and Daniel John Hillier (“the trustees”) be appointed trustees of the property pursuant to s 38 of the Property Law Act 1974 to hold the property on the statutory trust for sale (which is altered to the extent necessary to give effect to order 2) and that the property vest in the trustees. 4. The applicant be permitted to purchase the property from the trustees without the need for the trustees to sell the property by auction or to require the applicant to pay a deposit on account of such purchase. 5. Liberty to either party or the trustees to apply on 2 days’ notice in writing to any interested person. 6. The respondent pay the applicant’s costs of the application to be assessed.
CATCHWORDS:	EQUITY – TRUSTS AND TRUSTEES – CONSTITUTION AND CLASSIFICATION OF TRUSTS GENERALLY – CLASSIFICATION OF TRUSTS IN GENERAL – IMPLIED TRUSTS – CONSTRUCTIVE TRUSTS – INDEPENDENT OF INTENTION – GENERAL PRINCIPLES – where parties in de facto relationship purchased real property as joint tenants – where parties borrowed most of the purchase price which was secured by mortgage – where close to equal contributions by the parties to the purchase repayments under the mortgage and other outgoings up until date of separation – where parties failed to negotiate property settlement upon separation – where respondent unable to be located – where applicant rented the property and paid all outgoings in respect of the property – where outgoings exceeded rent – declaration sought as to the extent of the parties’ interests in the property – where constructive trust imposed to reflect beneficial entitlement at time of separation REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – QUEENSLAND – whether applicant’s solicitor should be appointed as statutory trustee for sale – independent trustees appointed Property Law Act 1974 s 37A, s 38, s 40, s 42 Baumgartner v Baumgartner (1987) 164 CLR 137 Muschinski v Dodds (1986) 160 CLR 583
COUNSEL:	DL Kellie for the applicant No appearance for the respondent
SOLICITORS:	Bickell & MacKenzie for the applicant No appearance for the respondent