Elais, Re [1990] QSC 183

.,j -~- 10 . 20 (J 30 (! (~ C) 40 u 50 60 ' \?q \L- ·. . . . . .. F"-'--"T'-'-H_E---'s"-u-"-P_R_E_M_E_c_o_u_R_T_o_F_.,,._u_E_E_N_s_L_AN_:_:?" 8 ;,:f~~;-;-l~~t~:F~•F;,;'~s ~~~~~1, IVIL JURISDICTION No.· 506.of 1990 .-~. EFORE MR. JUSTICE RYAN RISBANE, 31 MAY 1990 .,-i (Copyright in this transcript is vested in · the Crown. Copies thereof must.not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF THE PROPERTY LAW ACT 1974 -1985 -and- IN THE MATTER OF AN APPLICATION BY HELENA MARIA ELAIS UNDER SECTION 38 OF THE ACT. JUDGMENT HIS HONOUR: The question for my consideration in this ase is whether I should make an order that the property be old and then the matter of the respective entitlements of he parties be determined or whether the entitlement of the arties should first be determined and thereupon a sale rdered. In this case, there is no dispute that the property is eld in co-ownership. It is vested in the parties as joint enants and the dispute is limited to one as to the espective contributions of the parties. The parties had lanned to marry, but after they separated they conducted egotiations in relation to the disposition of the property y sale or parti~ion. Eventually, agreement was reached on·. proposed subdivision, but the application for subdivision as refused by the local-authority. The respondent has deposed:-_ _-:•~·-~-:-~.,,.;,,tar, Qld. t ''.<:" . :- ··,. 1 10 20 30 40 50 60 -- 1 of 3 -- 10 "There is a dispute between the applicant and me. as to the extent of our respective inteiests in the subject property. The applicant maintains· that she is entitled to a half interest, whereas my position has always peen that our interests are : in proportion to·~ur respective contributions to the purchase price. -.:r- ·c_ontributed to more than 50 per cent of· the purchase price .. I will be asking this Honourable Court ·to make a determination as to the extent of .the interests of the applicant. and me in the subject property. I feel .that it is important that this determination be made before the pro~erty is sold." No reason was given as to why this was important to the espondent. Secti6ri~~~42··0:f):hEi'.:;:prqpefty Law Act empowers· the court o determine any question of fact arising (including 20 uestions of title) in the proceedings or give directions as o how such questions shall be determined and to direct that uch inquiries be made and such accounts be taken as may, in he circumstances, be necessary for the purpose of scertaining·and adjusting the right§ of the parties. 30 I,:consider it appropriate in this case to give irections as to how the dispute of questions of fact rising in the proceedings are to be determined, rather tha.n determine them summarily. I If the dispute in this case was one as to whether there 40 as a co-ownership, I would consider it necessary to have facts determined in order to decide whether I should ake an order under s.38 of the Act. There is no such ispute here, and r·consider that I have a discretion ursuant to s.38 to make an order appointing trustees of the so roperty and vesting it in such trustees. But it seems to e preferable to have the situation determined as to the espective rights of the parties in the property before rustees are appointed to hold it on the statutory trust for ale. There is nothing put before me to indicate that 10 20 C) 30 50 60 60 ··.·. ··~,~ _: 0 rinter, Qld. 2 -- 2 of 3 -- C) (") () (-) (~ C) (_) ·-:._· ither party would be prejudicially affected if sale was elayed until the respective rights·of the parties are etermined: Accordingl~r; I order that the question of the equitable 'nterest of each- of the paities in the property shall be <;,·. 10 etermined. I make orders in terms of paras. A to -E of the raft order which has been put before me, and also in terms f para. 9. That would include further consideration of the atter, which would include the appointment of the statutory 20 30 40 50 60 rustees once those questions of fact have been determined. Both parties will be given liberty to apply and costs eserved. 3 10 20 30 40 50 60 -- 3 of 3 --