A Pragmatic but Risk‑Exposed Approach: Sale of Property Without Appointing a Statutory Trustee

We recently became aware of a new case where the District Court of Queensland ordered the sale of a jointly owned residential property under the new Section 33 of the Property Law Act 2023 (Qld).  The order adopted a streamlined, agent‑driven process rather than appointing a statutory trustee for sale. While the orders appear to be effective in compelling a sale, it left the disputing co‑owners in practical control of key steps. Additionally, it raised potential exposure by both parties, particularly the Applicant, to several practical and legal risks.

The approach adopted by the Court in this instance reflects a willingness to use the flexibility of the 2023 Property Law Act (Qld) to avoid the cost and formality of appointing statutory trustees. However, the absence of a trustee structure also removes many of the safeguards that would ordinarily protect co‑owners during a forced sale. It removed independence, discipline and dispute‑management mechanisms that a statutory trustee would ordinarily provide.

The Court’s Approach: Agent‑Led Sale With Party‑Driven Decisions

Some of the key Orders provided for:

Vacating Obligations Without Context: A Predictable Source of Dispute

The Court required the Respondent to vacate the property within 90 days of the order and required him to undertake extensive cleaning and repair tasks including removal of stains, repairing ‘all’ damage to internal and external surfaces.  No apparent guidance or consideration was given to the age of the Property (over 50 years old), the level of wear and tear naturally aligned with a building of that vintage and costs that may be involved that may be prohibitive for the Respondent to outlay.

This creates predictable friction: what is “reasonable”, what the Applicant may expect, what buyers expect, and what the agent recommends, which can lead to additional time (and potentially cost) and an increased likelihood of a further dispute arising.

By comparison, a statutory trustee will usually obtain vacant possession, attempt to work with the parties to prepare the property for sale, but will ultimately be tasked being able to make a final and decisive determination. In some instances, there may be no work required at all. If any work is required, we have trusted service providers that will assist with coordinating and managing the associated costs until settlement.

Broad discretion given to selling agent

The Applicant’s nominated agent was given unilateral authority to determine the method of sale, marketing strategy and listing price. At face value, this invites concerns about perceived bias, the agent’s suitability, and whether the proposed approach is commercially optimal. It also places the agent in a difficult position: rather than providing advice, they are effectively responsible for setting price expectations, which increases their exposure if the sale underperforms.

The Order was also silent on how the sale price was to be approved in a private‑treaty scenario. Without a defined approval mechanism, the parties are left to negotiate (or dispute) what price should be accepted. This uncertainty creates a real risk of stalemate, delay, or even the collapse of an otherwise viable sale.

By contrast, a statutory trustee will typically obtain multiple submissions from appropriate agents, supported by valuations (from both agents and a qualified valuer), a proposed sales strategy and timeline, commission structure, marketing plan and any recommendations required to prepare the property for sale. This process ensures an informed, contextualised and independent decision—regardless of whether the Applicant’s preferred agent is ultimately selected on merit. It also removes the potential for dispute about sale price and, in our experience, the competitive tension between agents often results in a lower commission rate.

Applicant‑controlled reserve price

The Court granted the Applicant (not the agent or the court), with power to set the reserve price if taken to Auction. Our belief is this may lead to a suggestion of bias towards the Applicant, and it does not set any process for how the Applicant should arrive at that figure. This also has the potential to expose the Applicant to a challenge by the Respondent if a proper process was not followed to set that reserve and it can be successfully argued the Property sold for less than market value.

Alternatively, a statutory trustee will obtain a formal valuation of the property and consider along with the agents’ submissions and selected agent’s recommendation and set an appropriate reserve price.

In effect, it would seem on the face of it, the role ordinarily played by the statutory trustee has been allocated to the Applicant and their chosen Agent (who may have no experience in dealing with these types matters, has to spend the time to undertake the work which may not be limited to selling the Property).

Risks Arising From the Absence of a Statutory Trustee

We have identified 5 key risks arising from not having an independent trustee/person managing the process:

1.     Lack of Independent Oversight
The Applicant has disproportionate control, and disputes are more likely (noting a dispute between the parties led to the initial application).

2.     Enforcement Difficulties
The Applicant must enforce compliance, potentially through further litigation, and may not have the time or expertise to handle that.

3.     Increased Risk of Sale Delay
Cooperation between the parties is required, and any breakdown can stall the sale (in particular around the Respondent vacating).

4.     Potential Conflicts of Interest
The Applicant is in control of the entire process. They choose the agent who sets the process, they set the reserve and decide on whether the property has been vacated in accordance with the order. In addition, the Applicant’s solicitors, who are likely to be similarly unliked by the Respondent) are to hold the net funds pending agreement between the parties.

5.     Higher Costs in the Long Run
Disputes and enforcement steps may outweigh the cost savings of not appointing a trustee.

Conclusion

The Court’s decision demonstrates the flexibility of Section 33 of the Property Law Act 2023 (Qld). By ordering a sale without appointing a statutory trustee, the Court adopted a streamlined, cost‑conscious approach. Yet this efficiency comes at the price of reduced independence, increased risk of conflict, and potential complications in enforcing the sale.