Chupungco & Anor v Henderson & Anor (No 2) [2011] QDC 195

1 [2011] QDC 195 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2248 of 2011 CESAR JAVIER CHUPUNGCO and FE MATEO CHUPUNGCO Applicants and REGINALD JOHN HENDERSON and LEONA BALIGUAT HENDERSON Respondents BRISBANE ..DATE 08/08/2011 ..DAY 1 CATCHWORDS Property Law Act 1974 s 38 Uniform Civil Procedure Rules r 14, r 70 Order for appointment of trustee for sale consequent upon declaration of a constructive trust - originating application ordered to proceed on pleadings for an outstanding claim to damages - leave to add a damages claim against an additional party without service of application on it. -- 1 of 4 -- 1-2 1 10 20 30 40 50 60 HIS HONOUR: Order that Peter Dinoris be appointed trustee for sale of Lot 48 on Registered Plan 148055, County of Stanley, Parish of Mackenzie, Title Reference 708263421, also known as Taplow Street T-A-P-L-O-W, as 15 Taplow Street, Waterford West, on the statutory trust for sale under section 38 of the Property Law Act 1974. Adjourn the application to a date to be fixed on two clear days notice. ----- Liberty to apply. Today tidies up orders made by the Court on the 14th of July 2011 when it was determined that a house property recently purchased in the name of the respondents was held on constructive trust for the applicants, who provided the full purchase price to the extent necessary to discharge their indebtedness under a mortgage over the property, they being the mortgagors and persons obligated to the lender. See [2011] QDC 156. While there may have been an entitlement in the applicants to the entirety of the property and the equity in it, their claim was limited as just indicated. They were willing to allow the respondents the advantage of any escalation in value of the property over the time that it's been held. A sale of the property seems inevitable now that the respondents are apparently without ability to meet the mortgage payments - which they have been doing. The expectation on the 14th of July was that that sale with the cooperation of the respondents might occur without the need for appointment of a trustee for sale under section 38 of the Property Law Act 1974. It appears that nothing has eventuated along those lines. The applicants, as the Court contemplated, are able to provide the Court today with a consent to act as trustee for sale from a chartered accountant. It's appropriate for the Court to make an order appointing him on the statutory trust for sale. There is no need to make further directions since the Court's existing order sets out the way in which the proceeds of sale ought to be dealt with. Nonetheless, liberty to apply is reserved as unforeseen difficulties may arise and, in particular, difficulties flowing from the respondents having mortgaged the property to another lender. Order as per initialled draft. MR BYRNE: Your Honour, there's just a couple more matters. Your Honour, the originating ----- application also asked for damages against the respondent. Your Honour, would you be minded to order that with respect to that, that the action be continued as if started by claim such that the - with respect to any damages that may occur, the plaintiff or applicant file a statement of claim. -- 2 of 4 -- 1-3 1 10 20 30 40 50 60 HIS HONOUR: Well, you're just going to have to find them, aren't you? MR BYRNE: Yes, your Honour. HIS HONOUR: You said you haven't got an address for service. MR BYRNE: I don't have an address for service. HIS HONOUR: All right. So a further order under rule 14 that the application in so far as it seeks damages proceed as if commenced by claim. Do you want a time limit for the statement of claim? MR BYRNE: Your Honour, that probably would be difficult at this stage because the damages may not crystallise until the place is actually sold. HIS HONOUR: Proceed as if commenced by claim on the basis of pleadings commencing with a statement of claim. Who knows what's going to happen now. I'd better reserve costs. MR BYRNE: And your Honour, one further matter----- HIS HONOUR: I'm going to change the first "commenced" there to "started" otherwise it looks as though I say "commenced" all the time. Yes? MR BYRNE: The last matter, your Honour, is it may be - and my client is presently investigating - that there may be an action with the result pertaining to all of this with AAA Financial Corporation Proprietary Limited who is the mortgage broker and who is managing the whole matter----- HIS HONOUR: Yes, well, that's on the basis that your clients assert their instructions were that the property ought to be either entirely or to an extent, in their names. MR BYRNE: Yes. And that property be also mortgaged. Your Honour, I seek leave to amend the claim to join, if necessary, AAA Financial Corporation Proprietary Limited. HIS HONOUR: Was there an affidavit establishing all of this? MR BYRNE: There was, your Honour, the affidavit----- HIS HONOUR: I don't want to do that without some evidentiary basis for it. MR BYRNE: Yes, the affidavit of my client Cesar Chupungco which was filed on the 23rd of June 2011----- HIS HONOUR: Yes, I'm looking at that. He said he went to AAA Financial Corporation. He says he can't recall exactly what happened. That might jump up to bite him. Can't even remember what happened the next time, exactly. -- 3 of 4 -- 1-4 1 10 20 30 40 50 60 MR BYRNE: Paragraph 25 and 26, your Honour, at the meeting of the 18th of November 2004 the offices of AAA, "The loan and mortgage would be in the name of Faye and myself." HIS HONOUR: Respondents said they'd make all repayments. Well, they've done that. "The loan and mortgage would be in our names." All right, so the one thing he does remember is that the AAA person said the property will be purchased in your names and, indeed, has to be, because you're going to be the mortgagors. Okay, so further order, that AAA----- AAA Financial Corporation Pty Ltd. ABN 91 379 569 571----- be added as a respondent for purposes of a damages claim being pursued in this proceeding against it. MR BYRNE: And I seek costs against the Hendersons, your Honour. HIS HONOUR: Well, the costs are going to be reserved because you're doing so much else today. If all you wanted was the appointment with the trustee, fair enough. MR BYRNE: Your Honour, with respect to granting a declaration an appointment of a trustee, we are then wholly successful----- HIS HONOUR: I still think I'll reserve them because you weren't in a position to get a trustee appointed last time. You didn't have the affidavit. MR BYRNE: That's true, your Honour. HIS HONOUR: I'm just checking, though, the situation under rule 70, is it, about who's got to be served. So I've got to say for purposes of rule 70 subrule (2) that it was ordered that service of an application for joinder of the additional respondent not be required, this without prejudice to its entitlement to apply to have the order set aside or varied. We'd better do that, hadn't we? MR BYRNE: Yes, your Honour. HIS HONOUR: All right. It's getting a bit complicated, so maybe your instructor can liaise with my associate and ensure this fairly complex order ends up right in the end. Thanks, Mr Byrne. ----- -- 4 of 4 --