T v. K

[2007] QDC 98

[2007] QDC 098

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 38 of 2005

T	Applicant
and
K	Respondent

TOWNSVILLE

..DATE 14/05/2007

JUDGMENT

Catchwords

Property Law Act 1974 - changing trustees for sale when those provisionally appointed by the Court's order proved unwilling to act

HIS HONOUR:  I order that Judge Pack's order of the 6th of February 2007 be varied to appoint Mark McDonald and Linda Wendy Leong, solicitors, as trustees on the statutory trust for sale in lieu of Bradley Tait and Gary Wilkins of the parties' property, 5 Coleton Court, Nelly Bay, being Lot 5 on RP 800739, County of Elphinstone, Parish of Magnetic.

...

HIS HONOUR: This boils down to a situation where Judge Pack's appointment of trustees on the statutory trust for sale under sections 38 and following of the Property Law Act 1974 has gone awry. That order was part of an order preceding declaring and/or adjusting the parties' property rights in light of the cessation of their former de facto relationship.

The problem is that the trustees indicated in Judge Pack's order of the 6th of February 2007, which appeared to resolve everything in the wider application, are unwilling to act. 
The Trust Company of Australia Limited whose representatives the appointees were unwilling to take on the commission, given the modest, in their eyes, value of the parties' jointly owned property at Nelly Bay.  The same reaction came from another trustee company which has been approached.

The respondent has not helped matters by his determined stance of non-appearance.  He is presumably content to be left in possession of a Harley Davidson motorbike which, for practical purposes, is now his, and with other aspects of the status quo.

Judge Pack's directions will have the effect that when the property is sold, half goes to the applicant and the other half, after some provision for the applicant's costs, goes to the respondent, Mr K.

Although the application proposed that the applicant, or Mr Leong who appeared on her behalf today, ought to be trustee, in the end, the partners in his firm, Mr McDonald and Ms Leong, are appointed instead.  They have provided a faxed copy of a signed consent of a kind envisaged in Judge Pack's order and Mr Leong has undertaken to file the original in the Court when convenient.  The fax is Exhibit 2.

Exhibit 1 is a faxed copy from the firm of a title search in respect to property which confirms the parties' ownership of it as joint tenants.  It is some comfort to the Court to have that document to provide some assurance that there is no error in identifying the property in respect of which trustees are being appointed.

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