Friday, 7 December 2012

Can the sheriff sell land in Victoria without a reserve - part 2?

In my earlier post of today, I referred to the final chapter in the long-running saga involving the $1,000 purchase of the equity in a property worth over $150,000 (see Zhou v Kousal [2012] VSC 187 and the related cases of Kousal v Suncorp-Metway Ltd [2011] VSC 312 and Wu v Ma [2011] VSC 208).

The sale in that case was ultimately set aside by the Supreme Court [see Zhou v Kousal] on the basis that the sum for which the debtor's interest was sold was so far below his equity as to amount to no sale. 

Recently, Associate Justice Lansdowne of the Supreme Court of Victoria was called upon to make an order for a sale of land by the Sheriff at auction without reserve - see JG King Pty Ltd v Kim Ngan Thi Do [2012] VSC 545. 

Her Honour ordered that the Sheriff sell the relevant property without reserve, but subject to Supreme Court approval. 
Her Honour concluded (at paragraph 18) that sale subject to court approval is the best means to protect the interests of the plaintiff (judgment creditor), the defendant (debtor and property owner), the Sheriff and the purchaser. 

In view of the disastrous result in the Kousal cases, the decision in JG King Pty Ltd v Kim Ngan Thi Do was probably inevitable; in my opinion it is now unlikely that the court will ever allow an unrestricted sale by the Sheriff without reserve in Victoria.

W G Stark

Hayden Starke Chambers

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