Axcess Debt Management P/L v Matila
[2014] QMC 12
•26 March 2014
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Axcess Debt Management P/L v Matila & Anor [2014] QMC 12
PARTIES:
AXCESS DEBT MANAGEMENT PTY LTD under assignment from CAPITAL FINANCE AUSTRALIA LTD
(plaintiff/respondent)
v
TAMILA MATILA
(first defendant/first applicant)
and
KOLISI MATILA
(second defendant/second applicant)
FILE NO/S:
M1158/08
DIVISION:
Magistrates Courts
PROCEEDING:
Claim – Application to stay judgment and enforcement warrant
ORIGINATING COURT:
Magistrates Court at Ipswich
DELIVERED ON:
26 March 2014
DELIVERED AT:
Ipswich
HEARING DATE:
17 March 2014
MAGISTRATE:
Simpson AP
ORDER:
1. The application to stay the enforcement of the judgment is dismissed;
2. The enforcement warrant – seizure and sale dated 4 September 2014 is stayed until 10 April 2014.
CATCHWORDS:
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY - WARRANTS OF SEIZURE AND SALE – where applicant/defendant applied for stay of execution pursuant to r 300, r 819 and r 895 Uniform Civil Procedure Rules 1999 pending the receipt of monies to satisfy the judgment – whether stay should be granted
Uniform Civil Procedure Rules 1999, r 300, r 819 and r 895
J White Enterprises Pty Ltd (In Liquidation) v Port Ballidu Pty Ltd (No. 2) [2010] QSC 214, applied
Quaresmini v Perpetual Trustee Company Ltd & Anor [2001] QCA 74 considered
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 2)[1983] 2 Qd R 255, followed
COUNSEL:
Sankey (Solicitor) for the Plaintiff/Respondent
The Defendants/Applicants appeared on the their own behalf
SOLICITORS:
Wallmans Lawyers (Adelaide) for the Plaintiff/Respondent
The Defendants/Applicants appeared on the their own behalf
The applicants seek an order pursuant to r 300 Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to stay the enforcement of a judgment dated 2 April 2009 and an order pursuant to r 895 UCPR to stay the enforcement warrant (possession of land) dated 4 September 2012 founded upon that judgment.
Background facts
The Statement of Claim filed on 21 October 2008 sets out that by written agreement dated 17 December 2004 Capital Finance Australia Ltd (“Capital Finance”) agreed to advance to the applicants $34,037.40 inclusive of interest. A term of that agreement was that the applicants would grant to Capital Finance a mortgage as security for payment of the loan monies over the applicants’ motor vehicle, a Ford Explorer. It was a further term that the applicants would repay the loan over 60 months in instalments of $567.29 per month.
The applicants failed to make the repayments as agreed and the agreement was terminated on or about 17 September 2007. On or about 16 November 2007 Capital Finance took possession of the Ford Explorer and sold it at public auction. The sale price was $993.00. There was a shortfall of $13,446.14 and that was the sum sued for in the Statement of Claim together with interest and costs.
The applicants did not defend the action and judgment was entered by default on 2 April 2009 for the sum of $15,790.42. This was made up of the claimed amount plus $875.08 in interest and $1,469.20 in costs.
In August 2009 Capital Finance applied for an enforcement warrant – redirection of earnings, however this was refused by the Court pursuant to r 856(3)(b) UCPR on the basis that applicants would not have sufficient means to satisfy any order made by the Court.
On 28 October 2011, pursuant to s 199 Property Law Act 1974 (Qld) Capital Finance assigned its legal rights and interest in respect of the judgment debt to the respondent.
On 30 July 2012 the Court granted leave to the respondent to enforce the judgment against the applicants.
On 4 September 2012 the respondent was granted an enforcement warrant by seizure and sale (“the enforcement warrant”) with respect to real property owned by the applicants as joint tenants situated at 81 Sandalwood Drive, Yamanto in the State of Queensland and more particularly described as Lot 270 Registered Plan 886179 County of Churchill Parish of Purga (“the property”).
On 2 October 2012 the enforcement warrant was registered on the certificate of title with respect to the applicants’ property.
On 19 August 2013 the Court granted a renewal of the enforcement warrant up until 4 September 2014. An auction of the property was scheduled for 5 March 2014. This was postponed following a complaint by the applicants to the Credit Ombudsman Service Limited. On 4 March 2014 the Credit Ombudsman closed its file regarding the complaint. The respondent remains at liberty to hold the auction of the property.
Following the assignment of the judgment debt to the respondent various payment arrangements were entered into with the applicants in respect of the judgment. The material on the Court file shows a number of defaults in respect of these arrangements.
At the time of hearing this application the applicants had made $8,799.30 in repayments in respect of the judgment. However, during this time interest and legal and enforcement costs as allowed by the Court have mounted. Those amounts total $17,039.11 as at 17 March 2014. As a matter of simple arithmetic the total sum owed by the applicants to the respondent as at the date of this application is $25,947.05.
The Application
The applicants have applied for order under r 300 and r 895 UCPR. Rule 300 UCPR provides:
The court may order a stay of the enforcement of a judgment
given under this part for the time and on the terms the court
considers appropriate.
Rule 895 UCPR provides:
(1) A court may, on application by a person liable to comply with
a non-money order—
(a) stay the enforcement of all or part of the order, including
because of facts that arise or are discovered after the
order was made; and
(b) make the orders it considers appropriate.
(2) The application must be supported by an affidavit stating the
facts relied on by the applicant.
(3) The application and affidavit must be served personally on the
person entitled to enforce the order at least 3 business days
before the hearing of the application.
It appears to me that the applicants are seeking relief under a rule that does not apply to their particular situation. Rule 895 applies to non-money orders and this is not the case here. This is an enforcement warrant for seizure and sale. The thrust of what these self represented litigants seek is to be found in r 819 (Application to set aside enforcement). This rule has general application to enforcement warrants and provides:
(1) An enforcement debtor or another person affected by an
enforcement warrant may apply to the court to set it aside or
to stay enforcement at any time.
(2) The filing of the application does not stay the operation of an enforcement warrant.
In the circumstances I will decide staying of the enforcement warrant matter in accordance with r 819 UCPR.
I have not been directed by either party to any authority on how to approach the stay of the enforcement warrant. In my view the approach to be taken needs to be consistent with the approach taken by Courts in respect to rr 300, 801 and 895. Following from this the relevant authorities are referred to in J White Enterprises Pty Ltd (In Liquidation) v Port Ballidu Pty Ltd (No. 2) [2010] QSC 214 per White J at [25]:
No particular approach is identified in r 895 or r 801, which is in the same terms referring to a stay of money orders. In respect of the latter, Holmes J (as her Honour then was) in Willemse Family Co Pty Ltd v Deputy Commissioner of Taxation [2003] 2 Qd R 334 considered if a stay were “appropriate”. In Gel Custodians Pty Ltd v RQ Consultants Pty Ltd & Ors [2010] QSC 173, McMeekin J, considering a stay application pursuant to r 300, discussed the balance of convenience. In JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 2)[1983] 2 Qd R 255, Derrington J, with whom Campbell CJ and Kelly J agreed, pointed out that a plaintiff having succeeded is entitled to the fruits of its judgment unless good reason is shown to the contrary.(ibid at 258)
Further I note that the Court has an unfettered discretion under r 895 to stay enforcement of a warrant of possession: see Quaresmini v Perpetual Trustee Company Ltd & Anor [2001] QCA 74 per Fraser JA at page 6.
The first applicant states in her affidavit of 12 March 2014 that the property is worth approximately $325,000.00 and has a mortgage of $250,000.00. She also states that she is repaying the judgment debt by weekly instalments of $150.00. The applicants have applied to their superannuation funds to have monies released to them on the basis of hardship so that those monies can be applied to the debt. The first applicant summarises her position as follows:
“35. I would very much like some time to make an instalment order application that would allow me to pay this debt off and keep my home for my children if my application for release of super does not succeed.
36. I would also very much like some time to allow for my application for release of superannuation to be processed. I will need until the 27th of March for the ATO to provide the letter and then for a further 14 days for the superannuation company to process my request or until 10 April 2014.
37. In the meantime I will continue to make payments of $150.00 per week until the matter is resolved.”
On 13 March 2014 the respondent proposed a compromise of the action, a matter sworn to by Mr Sankey in his affidavit without objection by the applicants, wherein the respondent would accept $19,000.00 in full and final settlement of the judgment if paid within 28 days of that offer (10 April 2014). The offer of compromise further states:
“Should the above sum not be paid we will proceed with the sale of the Property pursuant to the provisions of the Uniform Civil Procedure Rules, specifically Rule 828.”
The first applicant’s affidavit does not specifically state that the offer has been accepted but she does state that it forms the basis of the release of the superannuation funds. It appears to me that the respondent is prepared to act on the basis that the applicants are making attempts to finalise this debt in accordance with the offer of 13 March 2014.
In looking at where the balance of convenience lies it is difficult to see the real detriment to the respondent should the enforcement warrant be postponed until 10 April 2014 when it is part of their suggested compromise. No submission or evidence of detriment was put forward. However, that should be the extent of the stay of execution and thereafter the respondent will be at liberty to enforce its rights to conduct an auction of the property. Further, the applicants have not adduced any evidence that would undermine the judgment of 2 April 2009. There have been many attempts at payment plans that have failed and the small weekly sum currently being paid against the judgment is having little impact on the mounting interest. As noted by Derrington J in JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No. 2) the respondent should be entitled to the fruits of its judgment.
In conclusion the following are the orders:
1. The application to stay the enforcement of the judgment is dismissed.
2. The enforcement warrant – seizure and sale dated 4 September 2012 is stayed until 10 April 2014.
I will hear the parties as to the costs of this application.
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