AMP Bank Limited v Onion

[2017] QSC 106

SUPREME COURT OF QUEENSLAND

CITATION:

AMP Bank Limited v Onion [2017] QSC 106

PARTIES:

AMP BANK LIMITED ACN 081 596 009
(Applicant)
v
MARK DOUGLAS DRURY ONION
(Respondent)

FILE NO/S:

BS No 5640 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for decision on the papers without oral hearing

DELIVERED ON:

31 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Thomas J

ORDER:

1.   The application is refused.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – PRACTICE – TAKING POSSESSION – where applicant sought an enforcement warrant with leave of the court – where applicant failed to include a draft warrant with the application – where the applicant’s affidavit in support of the application did not comply with the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant otherwise gave adequate notice to the tenants for the taking of possession – whether the application should be granted or refused.

Uniform Civil Procedure Rules 1999 (Qld) rr 906, 913, 914

Perpetual Limited v Lee [2013] QSC 006

SOLICITORS:

HWL Ebsworth Lawyers for the Plaintiff

1. On 7 September 2016, AMP Limited became mortgagee in possession of a house at Gympie, by default judgment issued by the Registrar. Stacey Smith and Jodie Armstrong were tenants of the house, although they did not have a written tenancy agreement with the owner, Mark Onion.

1. On 7 October 2016, AMP sent the tenants a notice to vacate, nominating 14 December 2016 as the date by which it required vacant possession.

1. The tenants did not vacate the premises by 14 December 2016. Through a series of emails, AMP extended the time to vacate. At 21 April 2017, the tenants remained in possession. AMP now wants me to issue a warrant of possession.

1. If a person other than the person against whom the order is made is in occupation of the land under a tenancy agreement, an enforcement warrant may only be issued with the court’s leave.[1]

   [1]Uniform Civil Procedure Rules 1999 (Qld), r 913(2).

1. An application for an enforcement warrant must attach the warrant the person wants to issue.[2] Although AMP’s submissions refer to a draft warrant, I cannot see that the application has that draft attached. The purpose of attaching the draft warrant is to inform the tenants accurately of the proposed action.

   [2]Ibid, r 906(1)(a)

1. A person applying for an enforcement warrant must file an affidavit stating whether, to the best of the person’s knowledge, a person other than the person liable under the order is in occupation of the land under a lease or tenancy agreement.[3] That affidavit must be made no earlier than 2 business days before the date of the application.[4] In this case, the affidavit was filed on 9 May 2017. The date for the application to be decided was 19 May 2017. The affidavit did not comply.

   [3]Ibid r 914(1)(a).

   [4]Ibid r 914(3).

1. The absence of the draft, and the failure to provide a timely affidavit as to whether there is anyone in occupation of the premises are, in my view, defects that prevent me issuing the requested warrant.[5]

   [5]See, for example, Peter Lyons J in Perpetual Limited v Lee [2013] QSC 6.

1. The application is refused.