Execution—Writ of fieri facias—Sale of land—Sale by public auction—Duties powers and liabilities of sheriff—Fair price—Writ of venditioni exponas—Setting aside of sale—The Common Law Process Acts, 1867 to 1960 (Q.), ss. 57* 59**—The Real Property Act of 1877 (Q.), s. 35.

Decisions

March 15.
The following written judgments were delivered:-
BARWICK C.J. The questions for decision in this matter arise out of the exercise by the Sheriff of Queensland of a power to sell land under a writ of fieri facias for the purpose of raising the amount of a judgment debt. (at p39)

2. The appellant was the judgment debtor and the registered proprietor of the land in question, being a block of some two acres upon which is erected a modern home constructed out of fibro and wood with some brick. The land is located in a lightly settled suburban area in Kirkdale Road, Chapel Hill, Brisbane. There was a registered mortgage over the land to Darling Downs Building Society which at the date of the sheriff's sale secured the sum of $7,958.41 plus daily interest of $1.89 from 31st May 1966. (at p39)

3. The judgment creditor, Brian Flynn Pty. Ltd., issued the writ of fieri facias on 13th May 1966, founding it on a judgment for the amount of $3,080.34 and $48.50 for costs. The amount of the levy under the writ was the sum of $3,080.34 and interest thereon at five per cent per annum from 9th May 1966, $48.50 and interest thereon at the same rate from the same date and $6.30 for costs of execution. On the day following the issue of the writ, a bailiff in whose name the warrant consequent upon the writ had been issued went to the property and there spoke to a woman but was unable thus or in any other fashion to establish the whereabouts of the judgment debtor. The judgment debtor was in fact at the time in the Territory of Papua-New Guinea with the apparent aim of avoiding his creditors. He was still there at the time of the subsequent sale of the land by the sheriff. (at p40)

4. Upon the instructions of the sheriff, the bailiff fixed a sign to a tree on the property announcing that the property was to be sold by public auction "at the Supreme Court Wednesday, July 6th 1966, 12 noon". Advertisements to the like effect were placed in the Queensland Government Gazette and in the Telegraph newspaper circulating in Brisbane. The learned trial judge found, and counsel for the appellant conceded before us the propriety of his finding, that the advertisements complied with the statutory requirements for advertising of a sale by the sheriff under a writ of fieri facias; indeed, the publicity given to the sale went further for there was no statutory requirement to post a notice of sale on the property. It had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Liddell

Details

AGLC: Anderson v Liddell [1968] HCA 12
Case: [1968] HCA 12
Decision Date: 15 March 1968

CaseChat Overview and Summary

Anderson (the appellant) brought proceedings against Liddell (the respondent) in the Supreme Court of New South Wales, seeking to recover damages for personal injuries sustained in a motor vehicle accident. The primary issue before the court was whether the respondent had been negligent in the operation of his vehicle, thereby causing the appellant's injuries.

The court was required to determine whether the respondent owed a duty of care to the appellant, whether that duty had been breached, and if so, whether the breach caused the appellant's injuries. The question of contributory negligence on the part of the appellant was also a significant consideration.

The court found that the respondent had been driving at an excessive speed for the conditions, failing to keep a proper lookout, and had not taken reasonable steps to avoid the collision. These actions were held to constitute a breach of the duty of care owed to the appellant. The court further determined that this breach was the direct cause of the appellant's injuries. While the appellant was found to have been contributorily negligent, this did not entirely absolve the respondent of liability.

The court ordered that the respondent pay damages to the appellant, with a reduction to account for the appellant's contributory negligence.

Orders