AR Mortgages Pty Ltd v SC Investments International Pty Ltd ATF the Domain Unit Trust

[2017] QSC 109

SUPREME COURT OF QUEENSLAND

CITATION:

AR Mortgages Pty Ltd v SC Investments International Pty Ltd ATF The Domain Unit Trust [2017] QSC 109

PARTIES:

AR MORTGAGES PTY LTD ACN 158 826 585

(plaintiff)

v
SC INVESTMENTS INTERNATIONAL PTY LTD ATF THE DOMAIN UNIT TRUST ACN 099 723 369

(respondent)

FILE NO/S:

No 6481 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

2 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22 May 2017

JUDGE:

Boddice J

ORDER:

I make orders in terms of the amended draft, which I initial and place with the papers.

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 the applicant was granted default judgment on 23 September 2016 – where that judgment was served on the defendant on 19 October 2016 – where the occupants of the relevant property where advised of the default judgment on 18 October and directed to vacate the property by 24 December 2016 – where neither occupant has vacated the property – where a previous application for an enforcement warrant was adjourned to allow service of the relevant materials on the occupants – where the occupants were served by express post on 11 May 2017 – where neither occupant has responded – where the applicant applies for an enforcement warrant for possession of the relevant land – where the applicant seeks orders without oral hearing – whether the applicant should be issued an enforcement warrant

Uniform Civil Procedure Rules1999 (Qld) r 930

SOLICITORS:

Bransgroves Lawyers for the applicant

No appearance for the respondent

1. By application, filed 9 May 2017, the plaintiff seeks orders to enforce a previous order for possession of land situated at 18 Sunflower Crescent, Upper Caboolture (“the land”).  Leave is also sought for the plaintiff to issue an enforcement warrant.  The plaintiff proposes the application be decided without an oral hearing. 

   Background

2. The plaintiff is the registered first mortgagee of the land.  The defendant is the registered proprietor of the land.  The plaintiff’s mortgage was registered on 24 December 2015. 

3. The land contains two residential townhouses.  Both are occupied by persons other than the defendant pursuant to a right of occupancy under a residential tenancy agreement. 

   Claim

4. On 23 September 2016, this Court granted the plaintiff an order for possession of the property, pursuant to a judgment entered in default of the filing of a notice of defence and defence.  That default judgment was served on the defendant on 19 October 2016. 

5. On 18 October 2016, the tenants of the townhouses were advised of the defendant’s default under the mortgage and of the orders for possession.  Each tenant was directed to vacate the property by 24 December 2016.  Neither tenant has complied with the notice to vacate the property. 

   Application

6. The plaintiff previously applied for relief in similar terms.  That application was served on the defendant but not on either tenant of the property.  As their interests were affected by the grant of any leave to obtain an enforcement warrant, the application was adjourned to allow for service of the relevant material upon each tenant. 

7. Service of the relevant material on the defendant and each of the tenants was effected by express post on 11 May 2017.  No response has been received from either tenant or the defendant. 

   Consideration

8. The plaintiff is the beneficiary of a judgment in its favour entitling it to possession of the land.  It has given due notice of the present application to the defendant and both tenants as persons affected by the proposed application.  The defendant and the tenants have not filed any material in response to the application. 

9. In the circumstances, there is no good reason why the plaintiff ought not to be entitled to orders which will allow it to obtain the fruit of the judgment in its favour. 

10. I am satisfied it is appropriate to order that the previous order for possession of the land be enforced, that leave be given to the plaintiff, pursuant to r 930 of the Uniform Civil Procedure Rules, for the issue of an enforcement warrant to enforce the order for possession and that the plaintiff’s application for the issue of an enforcement warrant thereafter be referred to the Registrar. 

11. I make orders in terms of the amended draft, which I initial and place with the papers.