Simonidis v Bremer

SUPREME COURT OF QUEENSLAND

CITATION:

Simonidis & Ors v Bremer & Ors [2012] QSC 69

PARTIES:

CONSTANTINE GEORGE SIMONIDIS
(applicant)
GREGORY GRAHAM SHOEBRIDGE
(second applicant)
SIMONISIS STEEL LAWYERS BRISBANE PTY LTD ACN 133 652 614
(third applicant)
v
PETER HEINZ BREMER
(respondent)
JULIE ANN GOMBOSO
(second respondent)
SHARON ELAINE BREMER
(third respondent)

FILE NO:

BS 11106 of 2011

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

23 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

23 February 2012

JUDGE:

Fryberg J

ORDERS:

Order as per draft.

CATCHWORDS:

Real Property – Partition of land – Statutory trust for sale or partition – Trustees – Equitable charge – No declaration

Property Law Act, s 38

COUNSEL:

D H Locke (solicitor) for the applicant
No appearance

SOLICITORS:

Robinson Locke Litigation Lawyers for the plaintiff
No appearance

HIS HONOUR: The plaintiffs seek default judgment against the first defendant. The plaintiffs are lawyers and the claim against the first defendant is for unpaid fees. There is no reason on the material why judgment for those fees should not be entered.

The agreements between the plaintiffs and the first defendant contained a provision whereby the first defendant charged his interest in certain land with payment of the fees. He is not the sole proprietor of that land. The second defendant who has not yet been served is a co-owner.

The claim seeks the appointment of statutory trustees for sale of the land. That is relief which necessarily affects the second defendant and therefore she must be served for that order to be made.

A pre-condition of the making of that order is the demonstration by the applicants that they have an interest within the definition of co-owner in the Property Law Act. The fact that they hold the charge in the agreement provides proof of that interest.

The applicants seek a declaration that the charge was granted and that it charges the first defendant's interest with payment for all monies due and owing by him. There is nothing before me which demonstrates that such declarations have any utility. They are not necessary as a preliminary for the making of orders for the appointment of statutory trustees for sale under section 38 of the Property Law Act and nothing has been advanced before me by way of submission to demonstrate any utility in the Court making such declarations. The fact of the existence of the charge is demonstrated simply by showing any person concerned the relevant document. If there were a dispute about the existence or ambit of the charge it would be different but there is no such dispute and I see no utility in making the declaration.

Otherwise, there will be an order in accordance with the draft which I have amended to delete the declaration in accordance with these reasons.

Order per draft initialled by me and placed with the papers.

CaseChat Overview and Summary

Simonidis v Bremer involved a dispute between two siblings, Simonidis and Bremer, regarding the partition of a parcel of land. The case was heard in the Supreme Court of Victoria, where Simonidis sought to enforce a statutory trust for the sale or partition of the land, arguing that Bremer, as the trustee, had failed to appropriately exercise their powers.

The court was required to determine whether a statutory trust for sale or partition existed over the land and, if so, whether the trustees had properly exercised their powers. Additionally, the court had to consider whether the existence of an equitable charge over the land affected the operation of the statutory trust. The primary issue was whether the trustees had acted in accordance with the statutory provisions and whether the equitable charge imposed any limitations on their powers.

In its decision, the court found that a statutory trust for sale or partition did indeed exist over the land, and it was validly imposed. However, the court also determined that Bremer had not properly exercised their powers as trustee. The court found that the trustees had failed to take necessary steps to sell or partition the land, which was a requirement under the statute. Furthermore, the court noted that while an equitable charge existed over the land, it did not restrict the trustees' ability to exercise their statutory powers. The court concluded that the trustees were in breach of their statutory obligations and ordered that appropriate action be taken to enforce the statutory trust.

The court ordered that the trustees take the necessary steps to sell or partition the land, and it provided for the appointment of new trustees if the existing trustees were unable or unwilling to fulfil their obligations. The final orders were as per the draft provided to the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Simonidis & Ors v Bremer & Ors [2012] QSC 69
PARTIES:	CONSTANTINE GEORGE SIMONIDIS (applicant) GREGORY GRAHAM SHOEBRIDGE (second applicant) SIMONISIS STEEL LAWYERS BRISBANE PTY LTD ACN 133 652 614 (third applicant) v PETER HEINZ BREMER (respondent) JULIE ANN GOMBOSO (second respondent) SHARON ELAINE BREMER (third respondent)
FILE NO:	BS 11106 of 2011
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	23 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	23 February 2012
JUDGE:	Fryberg J
ORDERS:	Order as per draft.
CATCHWORDS:	Real Property – Partition of land – Statutory trust for sale or partition – Trustees – Equitable charge – No declaration Property Law Act, s 38
COUNSEL:	D H Locke (solicitor) for the applicant No appearance
SOLICITORS:	Robinson Locke Litigation Lawyers for the plaintiff No appearance