Stephens v Lamb

[2008] QSC 114

[2008] QSC 114

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No 1628 of 2004

JANIS STEPHENS	Applicant
and
JOY LAMB	Respondent

BRISBANE

..DATE 15/05/2008

ORDER

HIS HONOUR:  Trustees were appointed for the sale of the property, the subject of this litigation, in 2004.  The property is co-owned by two sisters, Mrs Lamb and Mrs Stephens.

Mrs Stephens has filed an application on 18 April last, returnable today, for a review of the trustees' position and a direction that the trustees proceed to sell the property.

Mrs Lamb was notified of that application at some time which was about two weeks ago but for some time prior to that, there were discussions involving the parties in which it ought to have appeared to Mrs Lamb that barring some agreement, Mrs Stephens would make an application of this kind.  Mrs Lamb wishes to have the application adjourned and for some considerable period to advance a substantial factual case. 

In summary, she wishes to argue that the trustees should be directed not to sell pending the outcome of some proceedings she commenced only last Friday in the Planning and Environment Court in respect of the heritage listing of this property.  That factual case would also involve a challenge to the valuation evidence which is relied upon by Mrs Stephens.  The valuation relied upon by her has been known to Mrs Lamb for a while but it seems that Mrs Lamb has had other difficulties getting a valuer to value this house, and although I was told by her solicitor that the likely opinion from a valuer presently obtained would be contrary to the evidence that Mrs Stephens relies upon, the valuer has progressed no further than that.

A large part of the argument in support of the adjournment was in reliance on the unavailability of counsel, who is Mr Lyons QC who has acted for Mrs Lamb for some time in related matters in relation to this property.

The present application, however, is not one which is a replica of the proceedings Mrs Lamb is bringing in the Planning and Environment Court.  There are different questions and broader issues involved here so far as the exercise of the trustees' duties are concerned.  It seems to me that Mrs Lamb was under no disadvantage if she retained other counsel for today's application.  There was ample time, in my view, between when she agrees that she had notice of the application and today's date for her to retain other counsel for today and for her to put on an affidavit that provided some factual basis for the case she wishes to advance in opposition to Mrs Stephens' application.

There was an affidavit served on Mrs Lamb only late on Tuesday but the case which Mrs Lamb has always had to meet here should have been obvious to her.  Moreover, there was something of an onus on Mrs Lamb always to gather her own evidence in readiness for an argument as to why the trustees ought not to be directed to do what they were appointed to do some four years ago.

The application for the adjournment is dismissed.

...

HIS HONOUR: On 15 March 2004 Fryberg J appointed trustees for Sale under the Property Law Act of a property at 81 Dornoch Terrace Highgate Hill. The co-owners of that property are Mrs Stephens and Mrs Lamb who are sisters. The property is unencumbered. The property has not been sold for reasons which I will now endeavour to summarise briefly.

In essence, Mrs Lamb has believed that the best price for the property can be obtained by demolishing the house which is upon it and selling the vacant land.  The house is subject to a heritage listing.  At least by now it seems to be in poor condition and I would infer it's likely to get worse with the further passage of time.

By February 2006, when the trustees had been appointed for nearly two years, this matter came before me in the Applications List, when Mrs Stephens was seeking to have the trustees get on and sell the property as she does again by her application today.

Mrs Lamb strongly relied then, as she does now, upon the prospects of obtaining the relevant approval for demolition of the house notwithstanding its heritage listing.  There was conflicting evidence as to the value of the property at that time and as to the impact of the heritage listing and the presence of the house upon that value.  I was then persuaded to allow Mrs Lamb what I expected would be a relatively short time to pursue with the Brisbane City Council the grant of an approval for the demolition of the house.  As my reasons record, I was informed by counsel then appearing for Mrs Lamb, that she intended to make an application to the council within a week or so of that hearing, which was on 9 February 2006.

As my reasons also record, it was that particular indication of her intention to promptly make that application, which was of particular importance for the outcome on that day.  It was only on the day of that hearing that Mrs Lamb tendered affidavits from a valuer and an architect in support of her argument and as I said then, it was only at the eleventh hour in the hearing itself that counsel for Mrs Lamb obtained instructions to the effect that her application with the Brisbane City Council would be lodged and by a certain time.

I then said,

"In the present circumstances, I think the better course is for the Trustees to wait, at least for a matter of weeks rather than months, in order to see what the response of the council is to this application.  The council might quickly respond favourably or unfavourably.  On the other hand, a response from the council might itself take a long time.  The circumstances then affecting what the trustees should do at any time will continue to develop and I cannot define for the trustees the point at which they should not wait further for some good to come of the application Mrs Lamb proposes to make.”

“Overall, given that nearly two years have passed”, I then wrote, “it doesn't seem to me to be untoward that some matter of weeks be allowed to pass to see what, if anything, can quickly come of Mrs Lamb's proposal."

Subsequently, Mrs Lamb did agitate for the demolition of the house but by a slightly different route than was indicated to me at the hearing.  She applied to the Planning and Environment Court for declaratory relief.  In broad terms, she sought a declaration to the effect that the heritage listing was no impediment to her proposed demolition.  She was successful in that Court.

On 14 December 2006 Judge Brabazon QC declared that the inclusion by the council of this residence in the council's heritage register was invalid.  The council successfully appealed that judgment to the Court of Appeal.  There were some alternative arguments which Mrs Lamb had made in the Planning and Environment Court.  She was allowed to raise those in the Court of Appeal as bases for upholding the judgment below but she was, in all respects, unsuccessful in the Court of Appeal.  Its judgment was delivered on 11 May 2007.

Mrs Lamb unsuccessfully applied for special leave to appeal to the High Court.  That application was refused last October.  Nevertheless, Mrs Lamb still wishes to pursue and by litigation, the demolition of this house.  Only last Friday she filed further proceedings in the Planning and Environment Court to that end.

I was assisted by information provided by Mrs Lamb's solicitor acting in that case, who is from a different firm than the firm representing her in this case, as to the range of outcomes and the issues likely to arise in that litigation.  It appears that the proceedings commenced last Friday are potentially affected by the outcome of an appeal in another matter called Bukmanus v. The Maroochy Shire Council, which is to be argued in the Court of Appeal in the next week or so.  There is a threshold question as to the extent of the power of councils in this context, which I am told is likely to be decided by the Court of Appeal in that case, and it is said that the outcome will demonstrate, subject to the prospect of the High Court considering the matter, whether in relation to this property, the Brisbane City Council does have power to approve the demolition of this house.

If it is held that the council has power, it would then be a matter for the council to consider whether it should exercise that power in favour of demolition and if it should decide that matter adversely to Mrs Lamb, there would then be the prospect of litigation in the Planning and Environment Court in relation to that decision.  One must speculate here that given the history of all of this, it is not beyond imagination that such a proceeding would go further than the Planning and Environment Court.

In other words, as matters presently stand, what Mrs Lamb proposes to do by way of further application to the Brisbane City Council and litigation has no definite end date.  It can't be said that within a matter of weeks or even necessarily months, that she will have a final answer to her case for demolition.  All of this, of course, is in the context of what happened in February 2006 when, over the objection of Mrs Stephens, I was prepared to allow Mrs Lamb some time to pursue the demolition of the house.

This year the trustees have obtained an up-to-date valuation.  That was obtained in February.  The property, according to that valuation, is worth more in its present state than as a vacant block.  That makes for an apparently compelling case for the trustees to now sell the property as is.  However, that valuation is challenged on behalf of Mrs Lamb.

Although she has been aware of that valuation for some time, as of today's date, she is not in possession of any valuation which contradicts it.  I have earlier today refused an application for an adjournment.  I have considered already whether she has had ample opportunity to obtain valuation evidence of the kind which she says she wishes to obtain now.  It does not seem to me that this valuation exercise should be such a complicated one that it would take as long as Mrs Lamb has considered that it should take.

The question then is whether the trustees should be directed to proceed to sell the property or should be instead directed to delay its sale yet further.  In all of the detailed consideration of matters that affect the planning status and heritage status of this house and the consideration of the various legal avenues which have been pursued or which might still be pursued in relation to those things, it is necessary, I think, to keep some sense of perspective.  This is, after all, a house which is jointly owned and for which a co-owner can expect to receive the assistance of the Court for an Order for its sale unless it is within that relatively unusual case where there is some good reason for denying that co-owner the benefit of her property.  Moreover, the Court has appointed trustees for Sale and has done so four years ago. 

The reasons I gave in February 2006 cited a passage from
Ford & Lee on Trusts in which the authors say,

"Where the duty to sell is accompanied by a power to postpone sale or a power to retain the property, the duty is to sell at a fair price within a reasonable time."

The position, as I see it, is that far more than a reasonable time has now elapsed.  I accept that the trustees did not act improperly by awaiting the outcome of Mrs Lamb's litigation which culminated in the refusal of special leave last October.    I accept also that the time between then and now is reasonably explained by the trustees.  They have not been inactive and in particular, they have procured the valuation to which I've referred.  But the time has now come for the trustees to sell because Mrs Stephens, as a co-owner is entitled to the benefit of her property, and as a co-owner to the sale of that property so that she can enjoy her share of the proceeds.

Having regard to the valuation which has been obtained, a present sale of the property rather than a postponed sale can hardly be considered an improper course for the trustees.

Accordingly, on Mrs Stephens' application, there will be Orders that the trustees be at liberty to proceed with the sale of the property and that it be sold by public auction.  There will be a direction that the trustees are not obliged to demolish the property or to take any steps in relation to that which the Brisbane City Council.

There are some items of personal property of Mrs Lamb which are still within the premises.  She will be ordered to remove them within 21 days, failing which, the trustees will be at liberty to dispose of them.

On further consideration of what I have just said, I'll withdraw that.  Rather than Mrs Lamb being ordered to remove them, there will be a direction that the trustees be at liberty to dispose of them if they are not removed within 21 days.

...

HIS HONOUR:  The remaining question is one of costs.  The matter comes here today on two applications:  one the renewal of the trustees' application which was the one before me in February 2006 (although I have said earlier that it was Mrs Stevens' application); the other one here is her application filed on 18 April last.  Each of them was necessary because Mrs Lamb was unreasonably maintaining her position that there should be some further and indefinite postponement of the sale while she pursued other legal avenues for the demolition of her house.

In the circumstances, there is no reason why the trustees ought not to have their costs and further it would be unfair to Mrs Stevens for her to bear any burden in that respect. 

The order will be that the trustees' costs of those two applications upon an indemnity basis and the costs of Mrs Stevens of those applications upon a standard basis be each paid from Mrs Lamb's share of the proceeds of sale and there be no order as to Mrs Lamb's costs.

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