Background
2 On or about 13 July 2016, the third respondent to the proceedings before the primary judge, Mr Jeremy King (Mr King), was made bankrupt pursuant to a sequestration order and Mr Brett Harrison was appointed as his bankruptcy trustee.
3 At the time of the making of the sequestration order, Mr King and Ms Yushkova were the registered joint tenants of real property described as Lot 801 on Registered Plan 162672, Title Reference 15771110, also known as 13 Bairnsdale Court, Helensvale in the State of Queensland (the Helensvale Property).
4 Subsequently, there followed a long period of litigation in relation to the Helensvale Property. On 16 September 2019, the bankruptcy trustee, who had been unable to secure the assistance of Mr King and Ms Yushkova to sell it, issued proceedings to enable him to realise Mr King's interest. He sought to establish both the nature and extent of that interest and secure the making of orders permitting him to sell the property. Mr King and Ms Yushkova disputed the trustee's claim that Mr King had any interest in the property.
5 On or about 4 February 2021, and pursuant to an application by the bankruptcy trustee, his Honour Judge Jarrett (as his Honour then was) made orders to the effect that Mr King had an interest in the Helensvale Property, that Mr Gavin Morton and Mr Leon Lee be appointed statutory trustees to sell it, that Mr King and Ms Yushkova deliver up possession of it, and that the statutory trustees effect its sale and disburse the proceeds.
6 These orders were made in default of an appearance by Ms Yushkova and subsequently, pursuant to an application by her, the judgment entered on 4 February 2021 against her was set aside. The order appointing statutory trustees for sale was stayed until further order.
7 On 18 February 2022, Mr Paul Cook and Mr Adam Johnston were appointed as new joint trustees of Mr King's estate and accordingly substituted as joint applicants to these proceedings.
8 The trial of the proceedings, concerning the entitlement of the bankruptcy trustees to an interest in the Helensvale Property and the nature and extent of that interest, was heard before Judge Vasta on 28 July 2022. It was defended by Ms Yushkova and Mr King.
9 At the conclusion of the trial, his Honour gave ex tempore reasons for his decision that Mr King had held a 37.32% interest in the property, which had now vested in the bankruptcy trustees.
10 In his Honour's reasons, the evidence advanced by Ms Yushkova and Mr King was considered in detail. His Honour identified that Ms Yushkova had claimed that she had purchased the Helensvale Property for a price of $710,000, utilising a loan from Westpac Banking Corporation (Westpac) in the sum of $530,000. His Honour also considered affidavit evidence from Ms Yushkova and Mr King to the effect that Ms Yushkova alone had been responsible for paying the purchase price for the Helensvale Property, including by making the loan repayments on her own behalf in discharge of the mortgage. In general terms, the trustees alleged that Mr King and Ms Yushkova were in a relationship and that joint funds were used to make the loan repayments, such that Mr King had acquired an interest in the property. Ms Yushkova responded by saying that, although she had a son with Mr King, they were not in any relationship. She said that, although Mr King was named as a borrower for the loan and his name was on the title to the property, it was not intended that he have any interest in it. She claimed that she was entitled to 100% of the equitable interest in the property.
11 The primary judge concluded that, on the evidence before him, the intention of Mr King and Ms Yushkova when the Helensvale Property was acquired was that they would be joint tenants of it and they would both contribute towards the repayment of the mortgage. In reaching that conclusion, his Honour determined that he was unable to accept Ms Yushkova or Mr King as credible witnesses. He also noted that there was significant independent evidence which contradicted Ms Yushkova's claims as to the manner in which the loan repayments were made. That included the following:
(a) Mr King was the principal borrower in respect of the loan used to purchase the Helensvale Property and this was reflected in the loan application.
(b) Although Ms Yushkova claimed that she had no relationship with Mr King, the loan application identified that Ms Yushkova and Mr King shared the same phone number and home address, Ms Yushkova and Mr King treated various outgoings and expenses as combined expenses, and Ms Yushkova and Mr King jointly owned motor vehicles, personal effects and household items.
(c) The repayments of the loan were made through various bank accounts which were jointly held by Ms Yushkova and Mr King.
(d) The evidence from the accounts indicated that Mr King was contributing substantially towards loan repayments.
(e) Mr King had previously brought an action for payment of monies, which he claimed to have been rent monies from the Helensvale Property, and which he had asserted should have been deposited into the loan account to pay off the mortgage. This indicated that he claimed an interest in the real property.
12 Relying on this evidence, the primary judge concluded that Mr King and Ms Yushkova intended to hold the property as joint tenants in equity, as indicated by their legal joint ownership.
13 It is to be noted that the learned primary judge accepted the somewhat unusual concession by the trustees that the joint equitable interest between Mr King and Ms Yushkova should only relate to a 75% interest in the land, such that the trustees' interest, being reflective of Mr King's interest, was 37.32% (after certain adjustments). Though the matter was not addressed in detail in his Honour's judgment, it appears that the trustees' concession was made by reason of the fact that Ms Yushkova had paid a deposit of some $210,000 for the property's acquisition, and this was properly to be attributed to her individual interest. Just how or why that might have been the case is unclear, but it is to Ms Yushkova's distinct advantage in any event.
14 On 28 July 2022, the primary judge delivered his Honour's decision in which he made the foregoing findings. His Honour declared that Mr King had a legal and beneficial interest in the property as a joint tenant with Ms Yushkova and that, upon the making of the sequestration order, Mr King's interest vested in the bankruptcy trustees.
15 Further submissions were received as to the precise form of orders, including orders as to costs. These issues were dealt with on the papers after the receipt of written submissions and, on 13 October 2022, the primary judge handed down his decision in relation to them. He concluded that Ms Yushkova should be responsible for all of the costs of the proceedings, despite the fact that she had not been served with the originating application for some considerable time after the action has been commenced.
16 His Honour ordered that Ms Yushkova pay the bankruptcy trustees' costs in a sum fixed at $120,000.
17 Otherwise, his Honour ordered that the statutory trustees be entitled to sell the Helensvale Property and, after allowing certain deductions (including that the bankruptcy trustees recover their costs), any residue of the sale proceeds be paid to Mr King and Ms Yushkova in the proportions of 37.3% and 62.7% respectively.
18 It is clear that the apportionment of the beneficial interest in the Helensvale Property reflected his Honour's conclusions in the earlier reasons as to the extent of Ms Yushkova's contributions, taking into account the trustees' concession that Ms Yushkova had acquired a greater interest by reason of her payment of the deposit.
19 On 4 November 2022, an appeal was lodged from the decision of the learned primary judge. The grounds of the appeal are not easily discerned but appear, in substance, to cavil with the conclusion that Mr King had any beneficial interest in the Helensvale Property. There is no specific appeal against the costs order of the primary judge, although that might be inferred.
20 On 20 December 2022, Ms Yushkova filed the present interlocutory application seeking a stay of the primary judge's orders pending the determination of the appeal. Again, the grounds on which the application is sought to be made are not entirely clear but tend to suggest that the primary judge erred in finding that Mr King had any interest in the Helensvale Property, or otherwise erred in failing to afford greater priority to Ms Yushkova's interests in the distribution of the sale proceeds from the Helensvale Property.