Lindsay v Qld Childcare Centres Pty Ltd

For the reasons which follow, a trustee for sale should be appointed. It is well established that an incident of co-ownership is the right to seek the appointment of a trustee for sale of the co-owned property. That relief is, in practical terms, granted as of right, save for exceptional circumstances. Mr Lindsay’s objections do not meet that threshold. However, the additional constraints on the trustee’s discretion sought by the second to fifth defendants – namely, that the Property be sold together with the business conducted upon it – should not be imposed.

The first defendant is Queensland Childcare Centres Pty Ltd (QCC). Its shareholders comprise:

The directors of QCC are Ray Hawkins, Patricia Hawkins and Sandra Hawkins (collectively, the “Hawkins parties”).

The sixth defendant (who was joined at the hearing of this application) is Mrs Sandra Marjorie Clive. Mrs Clive is the daughter of Ray and Patricia Hawkins, though it appears she is estranged from her parents and her brother, Bryce Hawkins. She was formerly married to the plaintiff, Mr Lindsay. She is now married to Mr Michael Clive, who is the plaintiff’s solicitor in these proceedings.

QCC is the corporate trustee of The Hawkins Family Unit Trust (Unit Trust). As trustee, it operated a childcare business under the name, “Biloela Early Learning Centre” (Business).

There are three unitholders of the Unit Trust, being:

Over the years, QCC has operated the Business for the benefit of the beneficiaries of the Unit Trust, and the profits have been distributed through it to the three unitholders and thereafter to the beneficiaries of their respective trusts.

QCC operates the Business on the Property, which is owned by Mr Lindsay as to a third, Ray and Patricia Hawkins as to a third, and Sandra Hawkins as to a third. However, no grant of tenure had been provided by them to QCC, and as such, it would appear that QCC occupied the Property, at best, as a bare licensee. No other interest in the Property was suggested.

The details of the acquisition of the Property and the commencement of the Business on it are vague and unclear on the evidence. There is an allegation, which seems to be accepted, that the Business and the Property were acquired as a “shared investment” with each of the three families holding, via their trustee companies, a third interest in the operating trust as well as each having a third interest in the land.

The proceedings by Mr Lindsay seeking relief from alleged oppression were commenced in this Court on 12 September 2025. For present purposes, there is no need to dwell upon the precise details of the allegations though, in general terms, he complains that, since resigning as a director of QCC in late 2008, the second to fifth defendants engaged in oppressive conduct by not giving him access to QCC’s financial records and, in particular, the operating ledger for the Business. Having ultimately acquired those records, he also complains of improper payments said to have been made by the Hawkins parties.

It seems that, as a result of this longstanding dispute, the Hawkins parties – being the directors of QCC and having a combined two-thirds interest in the Property – have decided to sell the Business and the Property. They appear to have been engaged in efforts to do so for some time, during which several potential purchasers have expressed interest.

Recently, an entity referred to as Wunderkids Early Learning Centres Pty Ltd (Wunderkids) has offered to acquire the Business and the Property for $3.6 million, with $2.2 million of that price attributable to the latter. The evidence shows that the Hawkins parties are all clearly desirous of selling the Business and the Property to Wunderkids, however, Mr Lindsay has refused to consent to the sale of the Property.

The second to fifth defendants filed the present application on 27 February 2026, by which they seek orders, among others, that:

The second to fifth defendants’ application is made pursuant to ss 33, 34, 37 and 39 of the Property Law Act, which relevantly provide as follows:

It is well established that the power of the Court to make orders under the above sections is broad. When ordering the sale of co-owned property or appointing a trustee for sale, it is empowered to make any order that the nature of the case requires, or, in the case of an order for sale, any order necessary to ensure a just and fair sale or division of property.

The principles applicable to making an order for the appointment of statutory trustees for sale under the predecessor to the Property Law Act were recently outlined by Bowskill CJ in McPaul v Massignani (2023) 14 QR 332 (McPaul). In that case, the applicant applied under s 38 of the Property Law Act 1974 (Qld) (the “1974 Act”) for the appointment of a trustee for sale of a property which she co-owned with the respondents, being her sister and brother-in-law. The respondents opposed the application on the basis that they had relied, to their detriment, on a representation by the applicant to the effect that she would not exercise her right to seek the appointment of a trustee for sale, if the need arose. That argument was rejected, and a trustee for sale was appointed.

The Chief Justice summarised the relevant principles at 340 – 341 [24] – [28]:

It is noteworthy that the dispute in McPaul was somewhat similar to that which has arisen in the present case. There, the respondents accepted that the alleged estoppel extended only to the applicant exercising her right to seek the appointment of a trustee under s 38 of the 1974 Act. It followed that, on the respondents’ submission, the applicant could dispose of her interest in the property another way. In effect, by this submission the respondents sought to force the plaintiff to sell her interest in the property to them, and on their terms. The Chief Justice said of the submission at 347 [51] – [52]:

Of particular relevance to this application is the scope of s 34(1), which confers upon the Court the power to make any order that the nature of the case requires to ensure a “just and fair” sale or division of the property. The issue arises in the context of the submission by the second to fifth defendants that it is “just and fair” to require the trustee to sell the Property together with the Business (see infra [53] – [59]).

In light of the principles canvassed in McPaul, it may be observed that the discretion in s 34(1) does not confer upon the Court the power to refuse to order the sale of property where jurisdiction to do so otherwise exists under s 33. That is, it does not permit the Court to diminish the near as-of-right character of such relief by declining to grant it on the basis of hardship or general notions of fairness: see Yeo v Brassil [2010] VSC 344 [20]. However, beyond that limitation, the content of the “just and fair” requirement remains unclear, given the breadth and evaluative nature of that expression. Its indeterminacy is compounded by the fact that the terms “just” and “fair” are, to a not insignificant degree, synonymous, such that their conjunction does little to clarify the scope of the discretion. Indeed, it is not readily apparent that there are circumstances in which it would be just, but not fair, to make a particular order, and vice versa.

The language “just and fair” was introduced into the Property Law Act following a review of its predecessor, the 1974 Act: see QUT Commercial and Property Law Research Centre, Property Law Review (Final Report, 2018) (QLD Property Law Review). That review recommended that the Court’s powers be broadened to account for the diversity of circumstances which might arise in the context of co-ownership (at 294):

The terminology appears to have been drawn from the Property Law Act 1958 (Vic). Section 228 of that Act relevantly confers upon the Victorian Civil and Administrative Tribunal the power to make any order it considers will ensure a just and fair division of co-owned land or goods.

Though it may be accepted that the co-ownership regime under the 1974 Act required expansion, that objective is not necessarily achieved by the adoption of language so broad, subjective, and imprecise that the Court is, in effect, left to formulate the policy by which its decision is to be guided. Indeed, s 228 of the Victorian Act, from which the language in s 34(1) appears to have been derived, has been described as conferring a “discretionary power of the widest ambit”: see Djordjevich v Peter Djeka Pty Ltd [2022] VSC 732 [57]; Li v Chao [2024] VSC 371 [38]. That characterisation, with respect, illustrates the difficulty.

Similar observations have been made in respect of other legislative provisions which confer upon courts the discretion to take a certain action when it is “just” to do so. For example, in Clancy v Australian Securities and Investments Commission (2025) 174 ACSR 69 at 75 – 77 [27] – [33], it was observed that the requirement in s 601AH of the Corporations Act that the Court must be satisfied that it is “just” to restore a company’s name to the register was so nebulous as to invite the formulation by judges of policy, rather than principle, thereby undermining both judicial independence and legislative responsibility. It was said at 76 [31]:

The same observations can be made in respect of s 34(1) of the Property Law Act. They apply equally to the notion of fairness, which – like the concept of what is “just” – is inherently evaluative and admits of differing views depending on the perspective brought to bear.

In those circumstances, though regrettable as it may be, the Courts are required to give content to that evaluative standard when appropriate to do so and, in this endeavour, the breadth of the statutory language requires the development of robust objective principles to guide the exercise of discretion. Happily, that task need not be undertaken in the present application.

Before turning to the substantive matters raised by this application, it should be noted that there was no dispute that this Court has jurisdiction to make the orders sought under the Property Law Act. Notwithstanding, it is appropriate to make the following observations.

This Court’s original jurisdiction extends, relevantly, to any “matter” arising under any laws made by the Commonwealth Parliament: Judiciary Act 1903 (Cth) s 39B(1A)(c) (Judiciary Act). A “matter” in this context is a justiciable controversy comprised of the substratum of facts and claims that amount to the dispute or controversy between the parties: Primary Securities Ltd (as trustee of the Baker Partners Founders Fund) v Michlange Pty Ltd (No 2) (2025) 173 ACSR 398, 400 [10] (Primary Securities); Rana v Google Inc (2017) 254 FCR 1, 5 [17] (Rana).

Where a matter comprises both federal and non-federal claims, a court exercising federal jurisdiction has jurisdiction to resolve every issue: Primary Securities 400 [11]. The question, then, is whether the present application forms part of the same matter as the federal claim. Importantly, that assessment does not require that there be a complete overlapping of the underlying substratum of fact between the federal and non-federal parts of the matter: Rana 9 [29].

In these proceedings, the relevant matter enlivening the Court’s jurisdiction encompasses the circumstances giving rise to the claim under the Corporations Act in respect of alleged oppressive conduct by the shareholders/directors of QCC. In particular, the substratum of fact with which the claim is concerned is the operation of the Business by QCC. It follows that the present dispute about the Property, upon which the Business operates and which is owned by the directors of QCC as well as Mr Lindsay, must arise out of the same substratum of fact. Indeed, it would appear that the reason the Hawkins parties seek the Property to be sold is that they wish to end their relationship with Mr Lindsay, as a result of this enduring dispute. It is also relevant, in circumstances where compulsory acquisition orders are sought in the oppression proceedings, that the value of the Business, and the shares in QCC, may be materially affected by the sale of the Property. Further, any sale of the Property may go some way to bringing any alleged oppression of Mr Lindsay to an end.

It follows that, the present application under the Property Law Act comprises part of the “matter” which the Court, in the exercise of its federal jurisdiction, may resolve entirely.

It is no bar to the Court’s jurisdiction that the relevant provisions of the Property Law Act (see supra [16]) refer to the “court”, defined as the Supreme Court of Queensland, as having power to make the orders sought. That is by reason of the operation of s 79 of the Judiciary Act, which relevantly provides that:

In Australian Securities & Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 591 – 592 [68], Gleeson CJ, Gaudron and Gummow JJ observed that the operation of s 79 is not limited by any attempt by State legislation to restrict the enforcement of its provisions to State courts:

These principles were applied by the Full Court in Coshott v Prentice (in his capacity as trustee of the property of Coshott, a bankrupt) (2014) 221 FCR 450 at 474 – 477 [105] – [122]. There, it was held that the Court had the power to appoint trustees for the sale of property under s 66G(1) of the Conveyancing Act 1919 (NSW) in a matter concerned with the interests of a trustee in bankruptcy in the property to be sold. This is relevantly similar to the present case.

As the Chief Justice made clear in McPaul, a co-owner has a prima facie right to an order under s 34 for the appointment of a trustee to sell co-owned property. That right is an inherent characteristic of the co-owner’s bundle of rights. Therefore, in the ordinary course, where co-owners are not able to agree upon the use or disposition of land, the usual position is that the sale should be ordered.

Here, it is not irrelevant that interests comprising two-thirds of the total ownership of the Property seek to have it sold. This might provide a greater justification for the making of an order, than would be the case between co-owners who each own 50%. That said, it would not be an impediment to sale that the refusing co-owner has a 50% or more interest in the property. The right to make an application to Court for a sale and the right to such an order exists in all co-owners.

Therefore, the Court should approach the matter with a predisposition in favour of making the orders sought.

The precise basis on which Mr Lindsay opposes the sale of the Property was not entirely clear. It is apparent, however, that he has for some time desired that it be sold. The evidence shows that as early as 2008, in the context of his divorce from Mrs Clive, he became subject to an order of the Family Court requiring him to sell his interests in the Business and the Property. It follows that an order for sale of the Property would further his obligations in that respect. Moreover, as the defendants pointed out, Mr Lindsay’s altered position in respect of his oppression claim, by which he seeks to acquire all the shares in QCC and, presumably, a complete interest in the Property, appears to be contrary to the thrust of those extant orders.

Notwithstanding, it would appear that Mr Lindsay advanced two main submissions opposing the application.

Firstly, he submits that to grant the orders sought by the application would be to deny him the reasonable opportunity to acquire the Property and, in turn, the Business. To that end, there is evidence that he has offered to purchase the Property, together with the Business, for a total price of $3.6 million. That is sought to be done by the acquisition of all the units in the Unit Trust, or the shares in QCC, and the totality of the interests in the Property. The offer is subject to a number of terms, including due diligence and finance.

Mr Lindsay’s offer was rejected by the Hawkins parties for three primary reasons. Firstly, they do not wish for him to obtain control of QCC, because they are concerned that he may use it to pursue actions against them. Second, they suggest that to transact with Mr Lindsay would require due diligence, which necessitates interaction between Sandra Hawkins and Mr Lindsay, which they say is not appropriate in the circumstances. Third, they suggest that it is, in fact, Mr and Mrs Clive who are attempting to acquire control of the Property and the Business and are using Mr Lindsay to do so.

Mr Lindsay submits that the Hawkins parties’ rejection of his offer constitutes further oppressive conduct, although the basis of that submission is not particularly clear. On the available evidence, there is no foundation for the contention. The Wunderkids offer is no less profitable than Mr Lindsay’s, and its acceptance would result in the same benefits for the members of QCC.

Ultimately, like in McPaul, the fact that Mr Lindsay wishes to acquire the Property and the Business, and made an offer which was rejected by the other co-owners, is not sufficient to prevent the co-owners from exercising their right to seek the appointment of a trustee for sale. Indeed, the very purpose of such a right is to provide a mechanism for terminating the co-ownership of land when the co-owners are unable to agree on the manner in which the land is to be dealt with: McPaul 340 [24], citing Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635, 650. The Hawkins parties’ rejection of the offer simply illustrates, at least in part, the disagreement between the co-owners giving rise to the present application.

Further, and in any event, the appointment of a trustee does not necessarily preclude Mr Lindsay from eventually acquiring the Property, and potentially the Business (see infra [58]). It is a matter for the trustee to determine the course of action which best advances the interests of all co-owners. Though unlikely, it is not impossible that the trustee might consider it to be in the co-owners’ best interests to sell the Property, together with the Business, to Mr Lindsay. That is particularly so if, as he suggests, his offer is on more favourable terms than that of Wunderkids. On the other hand, it is unlikely that the second to fifth defendants will accede to a sale of their interests in QCC to Mr Lindsay for the reasons identified (supra [43]).

Mr Lindsay further submits that, if the Court were to make the orders sought, they would have the effect of undercutting the statutory remedies he seeks in the oppression proceedings – namely, orders compelling the second to fifth defendants to sell their shares in QCC to him.

It appears to be accepted that such a defence may be advanced in answer to an application for orders for sale of co-owned property. As Cavanagh J observed in Rance v Dempsey (No 5) [2026] NSWSC 270 at [46] – [47]:

However, in the present case, the making of an order for sale would not undermine or foreclose the remedies sought by Mr Lindsay in the oppression proceedings. Critically, any sale of the Property would not necessarily affect the quantity or composition of the shares in QCC. As such, even following a sale, Mr Lindsay would remain entitled to pursue an order that he acquire the remaining shares in QCC, if he were able to establish that such relief were appropriate (notwithstanding that such orders are seldom made: Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 [1649] – [1808], adopted in WIJOAV Services Pty Ltd v Goldstone Private Equity Pty Ltd [2025] FCA 622 [169] – [170]).

It may be accepted that, depending on the circumstances, the value at which any compulsory share acquisition might be ordered could be affected by a sale of the Property. However, that possibility is contingent upon the particular circumstances, and Mr Lindsay did not adduce any evidence to suggest that it is more likely than not. The date on which the shares are to be valued has not yet been determined, nor has any proposal been advanced in that regard. Accordingly, it is not presently possible to assess the impact of any sale on their value.

In any event, the value of the shares in QCC has always been contingent upon the company’s lack of any secure tenure in the Property. As a licensee at will, QCC was always exposed to the risk that its occupation of the Property could have been terminated, potentially even on short notice. While it can be accepted that the overlap between QCC’s directorship and the ownership of the Property made the materialisation of that risk unlikely, it remains the case that the value of the Business – and therefore the shares in QCC – has nevertheless been subject to that contingency. Accordingly, a sale of the Property would not introduce a new vulnerability of the kind contended for.

It follows that neither submission advanced by Mr Lindsay should be accepted. As such, in the absence of a compelling reason to the contrary, orders should be made appointing a trustee for sale of the Property.

A significant aspect of the application was the orders sought by the second to fifth defendants requiring the trustee to confer with them and sell the Business together with the Property.

Mr Taylor submitted on behalf of the Hawkins parties that, as a matter of fact, the Property and the Business were acquired as a “shared investment” and, therefore, it would be just and fair for an order to be made under s 34(1) of the Property Law Act requiring them to be sold together, so as to maximise the value of both. It was further submitted that, in considering what is “just and fair” under s 34(1), the Court should have regard to the other interests of the co-owners which might be advanced by the making of such orders.

This submission was not advanced on the basis that the parties’ powers as co-owners of the Property are encumbered by any equitable or other duties to maximise the value of the Property or the Business or both. Nor was any argument to that effect advanced by Mr Lindsay. Indeed, it was put by the Court to the parties on a number of occasions throughout the hearing that such duties might possibly exist, though that suggestion was rebuffed. That position was somewhat surprising, given that, although the precise circumstances surrounding the acquisition of the Property and the establishment of the Business are not clear on the evidence, the parties appear to have acquired them as a shared investment, joint venture or quasi-partnership. Prima facie, such a relationship may give rise to equitable obligations inter se to act in each other’s best interests when dealing with their individual interests in the Property. It is conceivable that such obligations might require the Property owners to maximise the value of their shared investment. However, as no party sought to rely upon the existence or content of such a duty, it is unnecessary to consider the issue further.

In any event, and notwithstanding the observations made in respect of the “just and fair” criterion in s 34(1) of the Property Law Act (see supra [21] – [28]), Mr Taylor’s submission should be rejected for two reasons.

The first is that, although it may be accepted that the value of the Business could be diminished if the Property were sold separately, that consideration is not directly relevant to the question before the Court. The exercise of power under s 34 is concerned with the rights and interests of co-owners in the Property; it is not directed to the potential effects of a sale on interests held in a different capacity. While, in this case, there is overlap between the owners of the Property and those interested in QCC and the Business, those interests are not necessarily aligned. It is not apparent that the Court should take into account advantages or disadvantages accruing to those persons in other capacities. To do so would risk diminishing the statutory rights conferred upon co-owners. Rather, the focus should remain on their interests qua co-owners of the Property.

The second is that there is no evidentiary basis upon which the Court could conclude, with any certainty, that the value of the Property would be maximised by a sale together with the Business. While that may be a possibility, it is ultimately a matter for the trustee to determine the course of action which advances the co-owners’ best interests. In that respect, it is open to the Hawkins parties, as directors of QCC, to cooperate with the trustee for the purposes of realising the Business, should he determine that to be the preferable course. However, it would not be appropriate to constrain the trustee’s powers by mandating such an approach.

As such, in the circumstances of this case it is not appropriate to confine the trustee’s powers in the manner sought by the Hawkins parties. While there may be cases in which a party is able to establish, on the evidence and to a high degree of probability, that it is appropriate to impose constraints on the scope of a trustee’s discretion, this is not such a case.

In the result, orders should be made appointing Mr Hambleton as trustee for sale of the Property, without the limitations contended for by the Hawkins parties relating to the co-ordinate sale with QCC’s Business.

For the avoidance of doubt, by this application the second to fifth defendants also sought several ancillary orders of a kind not uncommon in the context of appointing a trustee for sale. Those orders should be made, subject to a few minor modifications. In general terms, they will facilitate the expeditious sale of the Property and provide the trustee with maximum flexibility, including a wide discretion in the exercise of the power of sale. No substantive submissions were made opposing these ancillary orders.

The parties should be heard on the question of costs.