19 Thus Parliament's concern was the making of fictitious bids to create an unfair and misleading auction. The law has long held such concerns. In Mortimer v Bell (1865) 1 Ch. App. 10, Lord Cranworth described an auction which contained eleven bids made by a "puffer", (as such persons were then called), or invented by the auctioneer, thus: "The whole proceeding is a fiction calculated, if not intended, to deceive persons who thought of becoming purchasers." (See also Futuretronics International Pty Ltd v Gadzhis [1992] 2 VR 217 at 247).
20 However, the law has never regarded the right of a co-owner to bid at a public auction of property listed for sale by trustees under a statutory power of sale, as raising the concerns against fictitious bidding which have now resulted in legislative reform.
21 Co-owners may make an offer for property submitted by trustees for sale, as a matter of right. In addition section 66I of the Conveyancing Act recognises that the Court may allow co-owners of property to purchase the property either at auction, or otherwise, on such terms as to non-payment of deposit, or as to the setting-off or accounting of any purchase money or any part thereof, as would seem reasonable.
22 There is nothing in the Property, Stock and Business Agents Act which indicates an intention to interfere with the well-established procedures in relation to the sale of property by trustees for sale, or the rights of co-owners to bid at an auction where such properties are submitted for sale by the trustees.
23 Accordingly, I consider it appropriate in the circumstances of this case to make orders for the appointment of trustees for sale. The appropriate consents, affidavits verifying the execution of consents, and affidavits of the fitness of the proposed trustees have been filed.
24 The appointment of trustees for sale also has the advantage that if the property is not sold initially at auction, the course to be adopted for selling the property is one which the trustees will determine in the exercise of their powers as trustees, without being hamstrung by conditions, which, in the circumstances which then prevail, might be inappropriate.
25 Various proposed short minutes have been provided to me. The latest version was handed up this morning by the solicitor for the plaintiff. It provides for the making of a declaration as to the proportions in which the beneficial ownership of the property is held. It provides for making of orders pursuant to s 66G appointing David Gregory Young and Anthony Wayne Elkerton as trustees for sale of the property. It provides for consequential orders which appear to me to be appropriate and which otherwise deal with the matters referred to in my judgment of 4 February 2005.
26 In relation to the division of furniture, the orders follow the orders proposed by the defendant, but substituting a shorter time period for the making available of furniture for collection by the plaintiff than had previously been proposed. However, having regard to the lapse of time since the previous orders were proposed, I consider that the revised time frame in the orders proposed by the plaintiff is reasonable.
27 In addition to the orders which are proposed, I propose to reserve further consideration of the matter and to grant liberty to apply on seven days' notice.
28 I make declarations and orders in accordance with the document handed up by the solicitor for the plaintiff, which I will initial and date today and place with the papers, and to which I have added the following orders.
29 Exhibits may be returned after twenty-eight days.
30 I reserve further consideration of the matter and grant liberty to apply on seven days' notice.
31 I also amend para 15 to read "no further orders as to costs", with the intent that except insofar as costs may already have been awarded, each party should bear his and her own costs.