Simonidis v Bremer
[2012] QSC 69
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- Unreported Judgment
- Simonidis v Bremer[2012] QSC 69
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Simonidis v Bremer[2012] QSC 69
Simonidis v Bremer[2012] QSC 69
SUPREME COURT OF QUEENSLAND
PARTIES: | CONSTANTINE GEORGE SIMONIDIS GREGORY GRAHAM SHOEBRIDGE SIMONISIS STEEL LAWYERS BRISBANE PTY LTD ACN 133 652 614 (third applicant) v JULIE ANN GOMBOSO (second respondent) SHARON ELAINE BREMER (third respondent) |
FILE NO: | |
DIVISION: | Trial |
PROCEEDING: | |
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.