The Dynamics of a Statutory Trustee
What is a Statutory Trustee?
What is the Role of a Statutory Trustee?
Important Issues to Consider
Let’s break it down: What is a Statutory Trustee?
A Statutory Trustee is generally a person appointed by order of the Court to manage and coordinate the sale of real property in Queensland, pursuant to Section 37 of the Property Law Act 2023, and equivalent legislation across other Australian jurisdictions.
In matters involving the sale of real property, the Property Law Act 2023 (Qld) provides the Court with authority to make orders regarding the appointment, removal and powers of a Statutory Trustee, including:
Directing the terms and conditions under which the property sale is to be carried out.
Determining how the proceeds of sale are to be distributed between parties.
Providing for the Statutory Trustee’s remuneration to be paid from the sale proceeds.
What is the role of a Statutory Trustee?
In general terms, a Statutory Trustee coordinates the sale or resolution of property in accordance with the specific requirements outlined within a Court Order and facilitates distribution of the net proceeds to relevant beneficiaries or co-owners.
The responsibilities of a Statutory Trustee may include:
Securing and protecting the property asset.
Preparing the property for sale.
Arranging independent property valuations.
Coordinating real estate agents and marketing campaigns.
Liaising with statutory authorities, including councils, utilities and body corporates.
Managing encumbrances such as mortgages, caveats and leases.
Managing tenant or occupant matters.
Addressing statutory and compliance obligations.
Distributing sale proceeds in accordance with Court directions.
Consulting with legal advisors and relevant stakeholders.
Important Issues to Consider
Before applying to the Court for the appointment of a Statutory Trustee, it is critical to carefully consider the practical and legal implications of the proposed appointment and the terms of the Order sought.
Key considerations include:
Engaging experienced legal representation
It is important to engage a solicitor experienced in advising on and preparing Statutory Trustee applications to ensure the process is properly structured and compliant with legislative requirements.Balancing competing stakeholder interests
Careful consideration should be given to balancing the interests of disputing parties. Failure to appropriately address competing positions may result in extended disputes, increased legal costs and reduced net sale proceeds available for distribution.Ensuring appropriate Trustee powers
The proposed Court Order should provide the Statutory Trustee with sufficient authority to effectively carry out their duties. Overly restrictive terms may limit the Trustee’s ability to properly administer and complete the sale process.Clarifying Trustee remuneration and payment priorities
It is important that the Court Order clearly outlines the Statutory Trustee’s entitlement to remuneration, including the method and priority of payment from sale proceeds.Confirming alignment between legal and beneficial ownership
Legal ownership does not always reflect the parties’ understanding of beneficial or equitable interests. These matters should be considered early, as disputes regarding ownership entitlements can affect distribution of sale proceeds.Considering third-party equitable interests
There may be parties not listed on title who assert an equitable interest in the property. These interests should be identified and considered when structuring the proposed Order.Maintaining Trustee independence
The proposed Statutory Trustee should be independent and free from conflicts of interest. Appointment of an external and impartial professional is generally preferred to ensure fairness and transparency throughout the process.
