Bendigo & Adelaide Bank Ltd v Barton

[2015] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Bendigo & Adelaide Bank Ltd v Barton [2015] QDC 2

PARTIES:

BENDIGO AND ADELAIDE BANK LIMITED
(ABN 110 680 491 78)

(Plaintiff)

And

SONNY ROBERT BARTON

(Defendant)

FILE NO/S:

4486/13

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 January 2015

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Reid DCJ

ORDER:

Pursuant to r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the court grant leave for the issue of an enforcement warrant under r 915 of the UCPR for possession of the land described as Lot 3 on registered plan 895361 in the County of Canning, Parish of Mooloolah, title reference 50100082 and situated at 87 Ilkley Road, Eudlo in the state of Queensland (property) against the tenant and/or any other occupant of the property;1.   

Pursuant to r 915 of the UCPR the court issue an enforcement warrant for possession of the property in favour of the plaintiff;2.   

The defendant pay the costs of and incidental to the application to the plaintiff on an indemnity basis.3.   

CATCHWORDS:

APPLICATION – Enforcement warrant – Tenant or occupant – Leave

SOLICITORS:

K&L Gates for Plaintiff

1. In this matter the plaintiff applies for an order pursuant to r 913(2) of the Uniform Civil Procedure Rules (UCPR) for leave to issue an enforcement warrant under r 915 of UCPR for possession of land at Eudlo against the tenant or any other occupant of the property. Such an application can, in accordance with r 490 of UCPR, be made without oral hearing, as the plaintiff has here sought to do. It has complied with the relevant provisions of the rules relating to such applications including the provision of a draft order and submissions.

1. In September 2010 the plaintiff lent money to the defendant.  Contrary to their agreement the defendant failed to repay money owing.  On 21 November 2013 the plaintiff commenced proceedings for recovery of the debt and for possession of both the Eudlo property and another property at Darra which was secured by a mortgage.  The plaintiff obtained judgment against the defendant for recovery of the debt and for possession of both properties.  That judgment was served on the defendant on 16 May 2014 by sending it by prepaid ordinary post, addressed to him at both properties.

1. On 6 June 2014 the solicitor for the plaintiff issued a notice to vacate, being Form 19 under the Residential Tenancy and Rooming Accommodation Act (RTRAA), in accordance with s 317 of that Act to the occupants living at both properties.  Subsequently the Darra property was sold but the net proceeds did not discharge the defendant’s indebtedness and such sum as is owing has not been subsequently repaid by the defendant. 

1. On 15 November 2014, a Mercantile agent engaged to conduct an occupancy check of the Eudlo property attended the property.  He spoke to what he described as “an older male” who refused to give his name.  The man did say however that he was living at the property with the owner.  He also refused to name the owner.

1. It is not known whether that older male person occupies the property under a lease or tenancy agreement but a solicitor in the employ of the plaintiff’s solicitor attests that the legal officer in the employ of the plaintiff has informed her that the plaintiff has not consented to any tenancy of the Eudlo property.

1. An enforcement warrant may only be issued by the court to a tenant or occupant with the court’s leave pursuant to r 913(2) of UCPR. The notice to quit was of course sent by post to the property on 6 June. The occupant was spoken to in November 2014 but refused to identify himself.

1. It is in my opinion appropriate in the circumstances that the plaintiff be given leave pursuant to r 913(2) of UCPR for the issue of an enforcement warrant against the tenant or other occupant of the Eudlo property under r 915 of UCPR, and for consequential orders.

1. The plaintiff seeks an order that the defendant, and the tenant or other occupant of the property pay the costs of and incidental to the application. 

1. I will not order that the tenant or other occupant pay such costs.  There is no evidence that the occupant at the time of the visit of 15 November was an occupant at the time of the notice to quit.  There is also no evidence he was aware of the judgment against the defendant or of steps taken by the plaintiff to obtain possession of the property.  There is nothing to indicate anything more than that, as at 15 November, he was living at the property with the owner. There was also no identification of the person against whom the cost order is sought.

1. Even though the warrant should issue, since no occupant has been shown to have a better interest in the property than the plaintiff, there was no basis for making the cost order sought. 

1. I will therefore make the following orders:

1. Pursuant to r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), the court grant leave for the issue of an enforcement warrant under r 915 of the UCPR for possession of the land described as Lot 3 on registered plan 895361 in the County of Canning, Parish of Mooloolah, title reference 50100082 and situated at 87 Ilkley Road, Eudlo in the state of Queensland (property) against the tenant and/or any other occupant of the property;

2. Pursuant to r 915 of the UCPR the court issue an enforcement warrant for possession of the property in favour of the plaintiff;

3.          The defendant pay the costs of and incidental to the application to the plaintiff on an indemnity basis.