Duncan v Duncan[2017] QDC 243

DISTRICT COURT OF QUEENSLAND

1. (a)The Trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;

2. (b)
   The Trustee shall determine the reserve price for the auction after consultation with the auctioneer and considering any recommendation by the auctioneer;

3. (c)
   The Trustee may but is not obliged to obtain a valuation of the property if he deems that appropriate for the purposes of assistance in the determination of the reserve price at any auction.

5. That the Trustee is authorised to expend money on the property in preparation for its sale using the recommendation of any agent in that regard, and for its marketing or advertising and that the amount of such expenditure be paid for by the co-owners of the property in the proportions set out at l l(e)(i)-(vi) below.

6. That pending sale the co-owners shall pay or cause to be paid in the proportions set out at 11(e)(i)–(vi) all outgoings on the property including rates, local authority charges, body corporate charges (if any) and maintain adequate fire and general insurance on the property and provide evidence of same to the Trustee as requested by him from time to time.
7. That the Respondent will vacate the property within two months from the date of this order and provide the keys to the property (if any) to the Trustee in preparation for sale.
8. That the Trustee is hereby indemnified by the owners or co-owners of the property against any claims made against them upon becoming registered owners as trustee on title, consequent upon a failure to pay any of the outgoings of the nature described in the preceding Order.
9. That if one party is unwilling or unable to pay their share of the outgoings on the property including a share previously unpaid when required to do so bythe trustee, the Registrar of the District Court is to deduct the amount owed by that party from that party's share of the net sale proceeds of the property prior to disbursement of their share to that party.

10. That pursuant to Section 38 of the Property Law Act 1944 (Q) the property be vested in the Trustee, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided share, to be held by the Trustee on the statutory trust for sale.
11. That upon settlement of the sale, the sale proceeds shall be paid or held, as the case may be in the following manner:
    1. (a)
       Firstly in payment of all necessary selling costs including  agent's  commissions,  legal  costs, marketing and advertising costs and all other necessary costs incurred in the sale;

Introduction

2. This is an application by the applicant for the appointment of a statutory Trustee for sale with respect to the property located at 99 Lelona Drive, Bloomsbury, Queensland described as Lot 62 on RP740624, title reference 21302012 and of the property vested in the Trustee for the purposes of sale.

Applicant’s material

3. Stuart Craig Duncan has sworn an affidavit filed 18 July 2017. Mr Duncan is the son of Robert Duncan, deceased who died on 20 November 2008 and is a beneficiary under his will dated 6 May 2007. The will was admitted to probate in Queensland on1 July 2009 and was resealed in New South Wales on 8 August 2012. The beneficiaries under the will are Stuart Duncan (the applicant), his mother (Sylvia Gwen Duncan) and his four brothers, Douglas Duncan, Wayne Duncan, Ross Duncan and Maxwell Duncan (the respondent). Douglas Duncan and Ross Duncan are executors and trustees of the will.

4. In 2010 the trustees transferred the property at Bloomsbury to the applicant, Sylvia Duncan, Douglas Duncan, Wayne Duncan, Ross Duncan and Max Duncan as tenants-in-common in equal shares pursuant to the will. Four of the co-owners of the Bloomsbury property, namely Douglas Duncan, Wayne Duncan, Ross Duncan and Sylvia Duncan have authorised Stuart to represent them in this application. Wayne Duncan represents Sylvia’s interest in selling the property under an enduring power of attorney.

5. Since 2013 disputes have arisen between the respondent, Max on the one part and the remaining beneficiaries and co-owners on the other part with respect to the estate. There have been extensive negotiations conducted since 2015 between Max and the remaining beneficiaries. A value of $120,000 was agreed between the parties with respect to the Bloomsbury property and a resolution was agreed but Max refused to sign the agreement and negotiations had to commence from the beginning. It has been difficult to persuade Max to enter into meaningful negotiations to settle the dispute and finalise the estate since 2015. Max moved into the Bloomsbury property to live with their parents in or about late 2005, early 2006. Their father died on 20 November 2008 and Sylvia moved out of the Bloomsbury property in 2013 to live independently in a unit in Proserpine. Max remains living on the Bloomsbury property. He wants the Bloomsbury property transferred to him as sole owner.

6. The co-owners believe Max is unable to raise money until the estate is finalised and he receives the distribution of the estate assets. The co-owners believe Max had made no effort to independently raise funds to buy the remaining co-owners interests in the property. Negotiations have completely broken down and Max has become aggressive and hostile and threatens physical violence to any co-owner who attempts to enter onto the property. As a result the co-owners have been unable to access the property. It has also been difficult to get Max to contribute to his share of the costs of the property such as Council rates and insurance. The dispute with Max has made it impossible for the executors to finalise the estate. The remaining co-owners of the Bloomsbury property believe the property must be sold in order to resolve the dispute which has been ongoing for about four years.

7. Affidavits of acceptance to act as statutory trustee for sale by David Michael Stimpson and Ann Meagher, directors of SV Partners Insolvency (Qld) Pty Ltd are exhibited to the applicant’s affidavit.

Respondent’s material

8. The respondent in his affidavit filed 22 September 2017 alleges that the applicant has ensured that he holds no monies and has no access to legal representation or advice.

9. He alleges he was never asked to move from the property where he is currently residing. He alleges that monies in the estate have been provided to his brothers. He alleges the Peugeot remained registered in his father’s name despite the deceased dying nearly nine years ago now. He says the Bloomsbury property has no legal dwellings and the dwelling it does have has dry rot, collapsing floors and holes. He alleges the property is scattered with garden sheds and old vehicles and resembles a shanty town. He alleges that he remained the mother’s sole carer whilst she lived at Proserpine and suffered illness. He alleges the executors have failed to distribute the estate in a timely manner and appear to have taken liberties. He alleges the executors have removed many items from the Bloomsbury property.

10. I have also had regard to the emails he tendered (exhibit 1).

Course of application

11. The application first came before the court on 7 August 2017. It was adjourned to a date to be fixed.

12. It was mentioned on 21 August 2017 and was ordered to remain as listed on 29 August 2017.

13. On 29 August 2017 the matter was adjourned to the next call-over before myself. The respondent appeared on that occasion.

14. On 15 September 2017 the matter was listed for hearing on 25 September 2017. Both parties appeared by telephone on that occasion.

15. The matter came on before the court on Monday, 25 September 2017. At that stage the respondent appeared to agree with orders that the property be sold and that the monies be held in court pending his issuing proceedings. Despite this the respondent has not agreed upon the proposed draft order and the matter has come back on before the court. The respondent has not issued any proceedings.

16. As a result the matter was relisted for further hearing on 28 September 2017. The respondent did not appear on that occasion.

17. The respondent denied he was aware of the hearing on 28 September 2017. The applicant was sent an email from the court on 27 September 2017 at 9:32 am that the matter was relisted the next day 28 September 2017 at 10:00 am (exhibit 2). His name was called three times and he did not appear.

18. Also the email correspondence from the applicant to the respondent (exhibit 3) shows that the respondent did not respond to the proposed draft orders as he had agreed to do on 25 September 2017.

19. The respondent alleged he did not receive the email from the court as he was in a “black spot.” I adjourned the matter to enable the respondent the opportunity to seek legal advice until 6 October 2017. He did not. In material filed he seeks an adjournment until after 16 October 2017.1

20. Is it in the interests of justice to grant the adjournment?

21. I do not consider it is for the following reasons:

(a)This estate matter has been going on since 2009.

(b)The application has now been before the court for almost 2 months now and the respondent has not sought legal advice.

(c)The respondent has had more than enough time to issue proceedings and has failed to do so.

(d)Also at the hearing on 6 October 2017 the respondent did not press the application for the adjournment.

Applicant’s submissions

22. The applicant submits in light of the protracted nature of the dispute, the desire of the majority to sell the property, and in the light of the state of the law the property should be sold. Negotiations have broken down and it has been difficult to get the respondent to contribute to his share of the costs. The respondent does not even have any litigation on foot in relation to the estate.

Respondent’s submissions

23. The respondent on the other hand opposes the order and seems to suggest that the executors have been acting in bad faith and this is the reason the order should not be made.

Relevant Law

24. Section 38 of the Property Law Act 1974 (Q) provides inter alia

“38Statutory trusts for sale or partition of property held in co-ownership

1. (1)
   Where any property (other than chattels personal) isheld in co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.
2. (2)
   Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to, their rights and powers for the purposes of administration.

...

42Powers of the court

In proceedings under section 38 or 41 the court may on theapplication of any party to the proceedings or of its own motion—

1. (a)
   determine any question of fact arising (including questions of title) in the proceedings or give directions as to how such questions shall be determined; and
2. (b)
   direct that such inquiries be made and such accounts be taken as may in the circumstances be necessary for the purpose of ascertaining and adjusting the rights of the parties.”

25. In Wilson v Strzelcykowski & Ors 2 McMurdo JA stated:

“And again, in this case, his material and arguments suggest no tenable ground of appeal. The nature of a court’s discretion under s 38(1) of the Property Law Act 1974 is confined in that ordinarily the discretion will be ordered in favour of the appointment of trustees for sale, essentially because the remedy under s 38 is a valuable ingredient of a co-owner’s proprietary interest. In Goodwin v Goodwin 3, Justice McPherson with the agreement of the other members of the court, said;

‘It is well settled that to an application under s 38 of the Property Law Act, as this is, there is practically speaking no defence, and none has been suggested or was suggested at the hearing before the District Court in Kingaroy. The judge who hears an application of this kind has nominally a discretion whether to make an order under the section, but there was nothing before his Honour to activate the discretion in this case in such a way as to require or lead the learned Judge to refuse the order that was sought and which he made.’”

Disposition

26. In my view based on the authorities there is practically speaking no defence to this application. In my view the negotiations have broken down. In my view the property should be sold and the proceeds lawfully distributed.

27. On my reading of the material it may be that the respondent has been acting unreasonably, however on balance I think the usual rule should apply and the applicant’s costs should be paid from the estate.

28. I am prepared in those circumstances to make the following orders:

1. Pursuant to Section 38 of the Property Law Act 1974 (Q) SV Partners Insolvency (Qld) Pty Ltd Chartered Accountants located on 1st Floor corner Gordon and Sydney Streets, Mackay Queensland be appointed as Trustee for Sale of the real property at 99 Lelona Drive, Bloomsbury Queensland 4799 described as lot 62 on RP740624 title reference 21302012 (“the Property”) and that the property vest in the Trustee for the purposes of sale.
2. That the Trustee be entitled to sell the property by such method as it deems appropriate in the circumstances including but not limited to sale by auction or by private treaty.
3. That in the event of sale by private treaty the Trustee shall determine the appropriate marketing of the property including listing price from time to time, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments.
4. That in the event of the sale by auction:

1. (a)
   The Trustee shall determine the appropriate marketing campaign for the property including a marketing budget for advertising, the appointment of any agent or agents for the sale of the property and the terms and conditions of such appointment or appointments;
2. (b)
   The Trustee shall determine the reserve price for the auction after consultation with the auctioneer and considering any recommendation by the auctioneer;
3. (c)
   The Trustee may but is not obliged to obtain a valuation of the property if he deems that appropriate for the purposes of assistance in the determination of the reserve price at any auction.

5. That the Trustee is authorised to expend money on the property in preparation for its sale using the recommendation of any agent in that regard, and for its marketing or advertising and that the amount of such expenditure be paid for by the co-owners of the property in the proportions set out at l l(e)(i)-(vi) below.
6. That pending sale the co-owners shall pay or cause to be paid in the proportions set out at 11(e)(i)–(vi) all outgoings on the property including rates, local authority charges, body corporate charges (if any) and maintain adequate fire and general insurance on the property and provide evidence ofsame to the Trustee as requested by him from time to time.
7. That the Respondent will vacate the property within two months from the date of this order and provide the keys to the property (if any) to the Trustee in preparation for sale.
8. That the Trustee is hereby indemnified by the owners or co-owners of the property against any claims made against them upon becoming registered owners as trustee on title, consequent upon a failure to pay any of the outgoings of the nature described in the preceding Order.
9. That if one party is unwilling or unable to pay their share of the outgoings on the property including a share previously unpaid when required to do so by the trustee, the Registrar of the District Court is to deduct the amount owed by that party from that party's share of the net sale proceeds of the property prior to disbursement of their share to that party.
10. That pursuant to Section 38 of the Property Law Act 1944 (Q) the property be vested in the Trustee, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided share, to be held by the Trustee on the statutory trust for sale.
11. That upon settlement of the sale, the sale proceeds shall be paid or held, as the case may be in the following manner:

1. (a)
   Firstly in payment of all necessary selling costs including agent's commissions, legal costs, marketing and advertising costs and all other necessary costs incurred in the sale;
2. (b)
   Secondly in discharge of any liabilities secured against the property by registered mortgages;
3. (c)
   Thirdly in payment of the Trustee's costs and expenses incurred in effecting the sale and when the sale is settled; and
4. (d)
   Fourthly, in payment of the costs of the application (as set out at order 14 below) to the applicant's solicitors or to the applicant for reimbursement of monies expended on legal costs payable under order 14;
5. (e)
   Fifthly, the net proceeds of sale are to be paid into the District Court at Mackay pending institution of proceedings by the respondent against the executors of the estate of the late Robert Duncan; and
6. (f)
   Sixthly, if, within 30 days of settlement the respondent has not instituted proceedings again the executors of the estate of the late Robert Duncan, the Registrar of the District Court will distribute the net proceeds of the sale in the following proportions (subject to Order 9 above):

1. One-sixth to Maxwell Scott Duncan;
2. One-sixth to Douglas Beaumont Duncan;
3. One-sixth to Ross Murray Duncan;
4. One-sixth to Sylvia Gwen Duncan;
5. One-sixth to Wayne Robert Duncan; and
6. One-sixth to Stuart Craig Duncan;

12. That the Trustee is entitled to charge all reasonable costs and disbursements incurred by the Trustee in performance of the obligations pursuant to these Orders and that the fees and expenses be a first charge on trust monies.
13. That there be liberty to apply to all parties and the Trustee on 5 days’ notice, one party to the others.
14. That the applicant's costs on the indemnity basis be paid out of the proceeds of sale of the property.