Bunnings Group Ltd v Asden Developments Pty Ltd & Ors

[2013] QCA 347

Queensland Court of Appeal

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Interrogate

Catchwords

1. Real Property
2. › Co-ownership
3. › Statutory trust for sale
4. › Appointment of statutory trustee
5. › Effect on encumbrances affecting undivided shares
6. › Whether equitable charge over tenant in common's share attaches to proceeds of sale
7. › Property Law Act 1974 (Qld), ss 37, 37A, 38
1. Equity
2. › Equitable charges
3. › Charge over land
4. › Conversion of interest upon statutory trust for sale
5. › Whether security interest follows asset into proceeds
6. › Single continuous security interest principle
1. Practice and Procedure
2. › Natural justice
3. › Orders affecting rights of non-parties
4. › Whether order for disposition of sale proceeds binding on equitable chargee not given notice of proceedings
1. Partnership
2. › Partnership property
3. › Nature of partner's interest in partnership assets
4. › Whether land held as partnership property
5. › Effect on equitable charge over registered co-owner's interest

Quick Take

An equitable charge over a tenant in common's undivided share in land is not extinguished by the appointment of a statutory trustee for sale under Part 5 Division 2 of the Property Law Act 1974 (Qld); rather, the charge attaches to the former co-owner's proportionate share in the proceeds of sale. The terms of the statutory trust prescribed by ss 37A and 38 cannot be varied by agreement of the former co-owners inter se to defeat the rights of an encumbrancee, who is a 'co-owner' within s 37. An order for disposition of sale proceeds made without notice to the chargee does not bind the chargee.