Ward v Gulliver

[2000] QDC 19

IN THE DISTRICT COURT
OF QUEENSLAND

Registry:  Brisbane
  No. D279 of 2000

[Ward v Gulliver]

BETWEEN:

ANDREW PETER WARD

Applicant

AND:

DEBORAH MARY GULLIVER

Respondent

REASONS FOR DECISION -  O’BRIEN D.C.J.

Delivered the    10     day of March 2000

1. This is an application for the appointment of trustees pursuant to the provisions of s 38 of the Property Law Act 1974.

1. The applicant and the respondent are the owners of certain property situated at McIlwraith Street, Everton Park.  Between 1983 and March 1999 they had resided in a de facto relationship at that property which they had jointly purchased in 1985 for $63,000.  The purchase was financed largely though a mortgage agreement with Suncorp with mortgage repayments being made from the joint business account in the name A.P. & D.M. Ward Transport.  From the limited material before me it would appear that both the applicant and the respondent were involved in the conduct of that business.

1. The application is opposed by the respondent who has continued to reside at the property with the 13 year old daughter of her relationship with the applicant.  The respondent has endeavoured to maintain the mortgage repayments and her daughter attends school in the general area.  The respondent deposed to having “no suitable friends or family members to move in with or who can provide accommodation for my daughter and me”.  The respondent works as a part-time domestic and would have only a limited capacity to borrow funds towards the purchase of the property.  She has indicated an intention however to bring proceedings with respect to the partnership and her contribution thereto and believes that such proceedings may improve her position in that regard.

1. Apart from these issues of suggested hardship, it is argued for the respondent that there should be no appointment of trustees for sale of the property without the whole of the “financial interaction” between the parties being resolved.

1. The discretion which is granted to a court by s 38 of the Act has been described as a limited one. See the comments of Kelly SPJ in Re Permanent Trustee Nominees (Canberra) Limited (1989) 1 Qd R 314 at 317. In Ex Parte Einbart Pty Ltd (1982) Qd R 398 at 402 McPherson J said of the discretion:-

“In such cases (where co-ownership of land subsists in law), where there is no trust or perhaps other fiduciary obligation, it is difficult to conceive of circumstances in which the discretion, if any, conferred by the word ‘may’ in s 38(1) of the Property Law Act or its New South Wales equivalent would ever be exercised against the appointment of statutory trustees.  As was said by Kearney J in Hayward v Skinner (1981) 1 NSWLR 590, the right to partition, and now sale, is an incident of the property of a co-owner. And because of this it is also difficult to imagine that the existence of a mere contract or agreement to the contrary would ordinarily constitute a bar to the Court’s discretion to appoint statutory trustees in the case of co-owners at law”.

1. These observations are similar in effect to those of Connolly J in Re Permanent Trustee Nominees (Canberra) Limited at p 321:-

“... in the ordinary case of co-owners, without any additional feature, there was virtually no defence to the old partition action.  To such an extent was this so that the judgment was largely a formality and even trustees for infants were not obliged to put on a defence.  The rights of the parties were adjusted after judgment, which directed the usual accounts and inquiries and the action was commonly set down on further consideration after such accounts and inquiries had been taken and made.  The approach of the Court under the Act of 1911 under which sale was required to be ordered in lieu of partition if parties interested to the extent of a moiety or upwards requested it, unless the Court saw good reason to the contrary, is summarized in 21 Halsbury (1^st Ed) para. 1578.  The burden was discharged by showing that great hardship would be inflicted on one of the parties, especially when the Court considered that the party requesting a sale was actuated by vindictive motives; or that the property was unsaleable by reason of the right of entry, but could be partitioned: or was temporarily, much depreciated in value: or was almost valueless except in connection with another property.  However it had been held that good reason to the contrary was not shown by proving the mere descent of the other persons interested: or that the owner of a moiety occupied the entirety for commercial purposes, or even as a mansion house; or that it was an old family property.  It may be seen therefore that in modern times there are few defences to partition proceedings based merely on the circumstances of the parties.  To say therefore that the exercise of the discretion is virtually mandatory is an adequate statement for most cases but it is, in my opinion not strictly the law and should be avoided”.

It is apparent from these authorities that the discretion vested in the Court by s 38 is a very limited one and one which does not depend upon a simple balancing of the personal circumstances of the respective parties. In this case there is no suggestion of the existence of any proprietary right inconsistent with an order for sale and, in my view, there is no proper basis for the exercise of a discretion against such an order.

1. I therefore order that:

(1) Patricia Margaret Wright and Peter Poul Agerholm be appointed trustees for sale pursuant to s. 38 of the Property Law Act 1974 of the land described as Lot 88 on Registered Plan 26018, County of Stanley, Parish of Kedron and commonly described as 88 McIlwraith Street, Everton Park in the State of Queensland;

(2)          That upon sale by the said trustees each of the said applicant and the said respondent be at liberty to purchase the real property upon terms that he or she shall not be required to pay any deposit and that he or she may set off against the purchase price the whole of his or her share in that said property.

(3)          That either party have liberty to apply on three days notice to the other party.