Benz v P D Mortgage Services Pty Ltd

[1999] QCA 176

IN THE COURT OF APPEAL	[1999] QCA 176
SUPREME COURT OF QUEENSLAND

Appeal No. 1209 of 1999

Brisbane

[Benz v. P D Mtge Services P/L]

BETWEEN:

ELIZABETH MINA BENZ

(Applicant) Applicant

AND:

P D MORTGAGE SERVICES PTY LTD

A.C.N. 065 740 847

(Respondent)	Respondent
Pincus J.A. Moynihan J. Atkinson J.

Judgment delivered 21 May 1999

Judgment of the Court

APPLICATION DISMISSED WITH COSTS.

CATCHWORDS:	Practice - whether stay of order dismissing application for statutory order of review of entry of judgment by deputy registrar should be granted - whether mandatory injunction requiring respondent to give up possession of land to applicant should be granted.
Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 Films Rover Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670 Redland Bricks Ltd v Morris [1970] AC 652 State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243
Counsel:	The applicant appeared on her own behalf. Mr R I M Lilley for the respondent.
Solicitors:	The applicant appeared on her own behalf. Deacons Graham & James for the respondent.
Hearing Date:	4 May 1999.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 1209 of 1999

Brisbane

Before Pincus J.A.
Moynihan J.
Atkinson J.

[Benz v. P D Mtge Services P/L]

BETWEEN:

ELIZABETH MINA BENZ

(Applicant) Applicant

AND:

P D MORTGAGE SERVICES PTY LTD

A.C.N. 065 740 847

(Respondent) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 May 1999

1                    The applicant ("Ms Benz") applies to the Court to stay an order of White J dismissing an

application for judicial review of a decision made by Deputy Registrar Greig on 23 December 1998;

the notice of motion also seeks a stay of other orders but there is no appeal pending in relation to

those orders. The decision made by the Deputy Registrar was to enter judgment against Ms Benz

pursuant to an order of Thomas J (as his Honour then was) made on 22 October 1996. That order

gave Ms Benz leave to defend on condition that she make monthly interest payments to solicitors

for the respondent (‘PDMS’), in default of which PDMS was at liberty to enter judgment for

recovery of possession of land the subject of a mortgage held by it. On 22 December 1998, Ms Benz failed to make a monthly interest payment. Judgment was entered against her the following

day. At the hearing of this appeal Ms Benz stated that she was evicted from the land in question

on 19 March 1999.

2                    Litigation between Ms Benz and PDMS has been extensive; in order to place this appeal

in its proper context, it is necessary to pay some regard to its history, some of which has been

gleaned from submissions made to us.

3                    In 1994 Ms Benz was the owner of land, which had on it shops and residential

accommodation. A Mr Howard, a business and personal partner of Ms Benz and a party to much

of the litigation considered here, owned land which he was in the process of subdividing. The

parcels of land held by each were subject to mortgages with separate mortgagees. In September

1994 PDMS loaned $205,000 to Ms Benz, $105,000 of which was to pay out the outstanding

mortgage over her land. At the same time $565,000 was loaned by PDMS to Mr Howard,

$465,000 of which was to pay out the outstanding mortgage over his land. The loans were secured

against the land held by each, both in respect of their own land and that held by the other, so that

Ms Benz and Mr Howard were effectively guarantors for each other.

4                    Ms Benz contends that as part of the financing arrangements, working capital was to be

advanced to her and Mr Howard by parties associated with PDMS, but that this did not eventuate,

frustrating her and Mr Howard’s development plans. In September 1996 an application was filed

in the Federal Court seeking relief against PDMS and other parties, for, inter alia, breaches of the

Trade Practices Act 1974 (Cw'th), breach of contract and breach of fiduciary duty.

5                    In the same month, both Ms Benz and Mr Howard defaulted on their mortgage repayments.

PDMS issued writs and statements of claim against each for recovery of possession of the

mortgaged parcels of land. On 22 October 1996, in action no.7788 of 1996, Thomas J ordered

that Ms Benz be granted leave to defend the action, on the basis mentioned above. An order in

similar terms, in action no.7787 of 1996, was made in respect of Mr Howard. On 5 December

1996 Mr Howard failed to pay interest in accordance with the order of Thomas J. Judgment for

PDMS was entered against Mr Howard the following day.

6                    In the next few months the focus of litigation shifted to the Federal Court. On 17 December

1996 Cooper J heard an application for injunctive relief to restrain PDMS from exercising its rights

as mortgagee with respect to the parcels of land owned by Mr Howard and Ms Benz. Although

at that time Ms Benz had not defaulted in payment of interest on the terms required by the order of

Thomas J, she deposed, in an affidavit filed in the Federal Court on 16 December 1996, that she

would not be able to make the payment due on 22 December 1996. Cooper J dismissed the

application, in the case of Mr Howard because of the operation of the doctrine of res judicata and

in the case of Ms Benz because the Supreme Court was the appropriate forum in which to seek

interlocutory or other relief from the judgment of Thomas J.

7                    In the Federal Court application initiated in September 1996, referred to above, a directions

hearing was held before Spender J on 1 November 1996, in which it was ordered that the first,

second, third and fifth respondents deliver their requests for further and better particulars on or

before 15 November 1996 (PDMS being the first respondent), with Mr Howard and Ms Benz required to respond to each request by 13 December 1996. PDMS delivered its request for further

and better particulars on 29 November 1996. On 20 February 1997 Cooper J ordered that Mr

Howard and Ms Benz be granted an extension of time for compliance with the order of Spender

J. At a hearing a month later, Spender J ordered a further extension. Another month later, on 23

April 1997, the matter came on before Drummond J, who delivered a "guillotine" order, requiring

Mr Howard and Ms Benz to file and serve particulars and an amended statement of claim by 22

May 1997, in default of which their action would be dismissed with costs. Mr Howard and Ms

Benz delivered particulars which were incomplete and a statement of claim which was held to be

deficient, so that the action was dismissed on 23 May 1997.

8                    The field of litigation shifted back to the Supreme Court in December 1997, when Ms Benz

filed a summons seeking a stay of the order made by Thomas J on 22 October 1996. On 5 June

1997 Thomas J granted Ms Benz an adjournment of that application to a date to be fixed; no date

has so far been fixed.

9                    Then, in the Federal Court, Mr Howard and Ms Benz filed a notice of motion seeking a

declaration that they had complied with the order made by Drummond J on 23 April 1997, referred

to above, or, alternatively, orders that an extension of time be granted to comply with that order,

that leave be granted to amend the statement of claim and the proceeding be transferred to the

Supreme Court. Following a directions hearing, Drummond J heard the matter on 12 October

1998, dismissing the application. On 19 February 1999 Mr Howard and Ms Benz were

unsuccessful in an appeal before the Full Court of the Federal Court seeking to challenge the orders
made by Drummond J on 23 April 1997 and 12 October 1998.

10                  Prior to the decision of the Full Federal Court, there were further developments in the

Supreme Court. As has already been stated, on 22 December 1998 Ms Benz failed to pay interest

in accordance with the order of Thomas J, and judgment for PDMS was entered against her the

next day. On 5 January 1999 Ms Benz applied for a statutory order of review of the entry of

judgment by the Deputy Registrar. On 10 February 1999 White J dismissed the application. The

next day a notice of appeal was filed by Ms Benz. It is this appeal which is the proceeding in which

Ms Benz has made the application before us.

11                  Further litigation ensued before the hearing of this application. On 9 March 1999 Ms Benz

filed a notice of motion seeking a stay of execution of the writ of possession. On 15 March 1999

White J dismissed the notice of motion. As well, Ms Benz had delivered a counterclaim on 29

December 1998 in action no.7788 of 1996 (that is, the action by PDMS for recovery of possession

of Ms Benz’s mortgaged land). On 2 April 1999 PDMS applied to have the counterclaim struck

out, and Derrington J so ordered on 20 April 1999.

12                  The current position is that Ms Benz has been evicted from her parcel of land, and wishes

to return to it.

13      At the hearing of this application, Ms Benz began her submissions by challenging the order of White J refusing a stay of execution of the writ of possession. This order was made on 15 March 1999. The notice of appeal, however, makes it clear that the order being challenged is in fact that

made by White J on 10 February 1999, dismissing an application for judicial review of a decision

by the Deputy Registrar to formally enter judgment against Ms Benz. The judgment entered against

Ms Benz has been executed; even if an appeal against either of the orders of White J were allowed,

it would not now, without more, be of any assistance to Ms Benz.

14                  It emerged that Ms Benz seeks an order positively permitting her to return to the parcel of

land she has been evicted from. In legal terms, what she requires is a mandatory injunction,

pendente lite, requiring PDMS to give up possession of the parcel of land to her. It has been

suggested that before a mandatory injunction can be granted the party seeking the injunction must

demonstrate a "very strong probability of grave damage" or "a risk of irreparable injury": Redland

Bricks Ltd v Morris [1970] AC 652 at 665; Films Rover Ltd v Cannon Film Sales Ltd [1987] 1

WLR 670 at 680-682; Businessworld Computers Pty Ltd v Australian Telecommunications

Commission (1988) 82 ALR 499 at 502-503. Another line of authority suggests that there must

be a "high degree of assurance" that the party seeking the injunction will succeed: State of

Queensland v Australian Telecommunications Commission (1985) 59 ALR 243 at 245; Active

Leisure (Sports) Pty Ltd v Sportsman’s Australia Limited [1991] 1 Qd R 301 at 304, 315. The

award of such an injunction is not justified in the present case. Ms Benz has found alternative

accommodation and it is difficult to identify any relevant damage or irreparable injury which Ms

Benz will suffer if such an injunction is not granted.

15                  We dismiss the application, with costs.