Artapt Pty Ltd v Royal & Sun Alliance Lenders Mortgage Insurance Ltd [2003] QSC 133

State Reporting Bureau pbeajQsc I33> Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 16 April. 2003 y Application No 104 of 2003 ARTAPT PTY LTD Applicant (ACN 065 160 232) and ROYAL Sc SUN ALLIANCE LENDERS MORTGAGE Respondent INSURANCE LIMITED (ACN 001 825 725) CAIRNS ..DATE 14/04/2003 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 3 -- 14042003 D.l Tll/MKB M/T CNS2/2003 (Jones J) HIS HONOUR: Well, gentlemen, I have come to the view that there is a serious question to be tried in this matter and I must say that my decision was finely balanced, but ultimately there is evidence before me that a valuation of the premises was given at a much higher level than the premises actually sold for. That valuation was not by one valuer, but by a couple of valuers. There is evidence before me of reconsideration of the valuation after a failed auction, and even on reconsideration the price expected on sale was substantially higher than what was achieved. The outcome of the first auction where only two people appeared rather bespoke a lack of attention to the marketing. It might, however, have been a reflection of the timing of the auction or perhaps of the simple lack of interest in that particular property. These are matters that are not clear on the limited material before me. The circumstances leading to the second auction, though better attended, are not free from comment and perhaps criticism. Whilst I make those comments, one has to take into account also the other evidence which is before me of the perhaps difficult period in the real estate market in Cairns when this premises were being put up for sale. I nonetheless have come to the view that there is a genuine dispute about the timing, marketing and advice given in 1 10 20 30 m 50 2 JUDGMENT SC -- 2 of 3 -- 14042003 D.l Tll/MKB M/T CNS2/2003 (Jones J) relation to the sale. In coming to that view it is not to be 1 thought that I am anyway commenting upon the prospects of success of either party in the resolution of the dispute. These cases, from the applicant's point of view, are notoriously difficult and made more difficult in the circumstances of this case where the persons endeavouring to organise the sale, albeit doing it at the distance of Sydney and Melbourne, appear to have taken a number of steps to ensure that the property was reasonably marketed. Whether there were other steps that they could or should have been taken is a matter which will no doubt be argued in more detail when this dispute is resolved. 10 20 Using my discretion on the material before me I have come to the view that there is a serious question to be tried and that the statutory demand ought to be set aside. 30 Question of costs? 40 HIS HONOUR: I will make no order for costs. 50 3 JUDGMENT 60 -- 3 of 3 --