Davidson v Suncorp-Metway Ltd - [2020] QSC 315

SUPREME COURT OF QUEENSLAND

CITATION:

Davidson v Suncorp-Metway Ltd [2020] QSC 315

PARTIES:

WILLIAM JAMES ALEXANDER DAVIDSON

(Applicant)

v

SUNCORP-METWAY LTD ABN 66 010 831 722

(Respondent)

FILE NO/S:

BS 10881 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

14 October 2020, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2020

JUDGE:

Bowskill J

ORDERS:

1. The originating application filed 12 October 2020 is dismissed.

2. The applicant pay the respondent’s costs on the standard basis.

CATCHWORDS:

MORTGAGES – MORTGAGEE’S REMEDIES – POSSESSION – where the respondent mortgagee obtained an order for recovery of possession of mortgaged property in February 2019, and an enforcement warrant for possession of the property is due to be executed on 16 October 2020 – where the applicant applies for a stay of execution of the enforcement warrant, pending delivery of judgment on an application he has made in the Federal Court of Australia, in which he purports to challenge the validity of the mortgage on the basis that it does not comply with s 78(2)(c) of the Land Title Act 1994 (Qld) because it does not specify a dollar amount as the debt secured, and because the form of the covering page of the standard conditions incorporated by reference into the mortgage includes the words “not applicable” in certain parts of it – where there has been no appeal from the order for recovery of possession, and no basis shown to set aside that order – whether any basis to stay execution of the enforcement warrant, by reference to the application in the Federal Court of Australia, has been established

COUNSEL:
G D Skelton (sol) for the applicant

D J Ananian-Cooper for the respondent

SOLICITORS:
Allaw Queensland for the applicant

Gadens Lawyers for the respondent

By an originating application filed on 12 October 2020, Mr William Davidson seeks an order that the “Queensland Supreme Court Enforcement Warrant – Possession of Land dated 7 February 2019, arising from proceeding 1772 of 2018, be stayed until one month after Justice Jackson of the Federal Circuit Court delivers his judgment in the matter QUD 18/2020”.
The application was given an urgent listing, and was heard by me on 13 October 2020, because the enforcement warrant is due to be executed on 16 October 2020.
In his supporting affidavit, Mr Davidson says he is seeking to stay the execution of the warrant “because of my application, currently before the Federal Circuit Court that, if successful, will disturb all previous Supreme Court decisions including the warrant”. Mr Davidson’s other application is before the Federal Court of Australia, not the Federal Circuit Court.
Mr Davidson contends that one of the issues that has arisen for consideration in that Federal Court proceeding is “whether anything was owed on the registered mortgage first, due to the liability on the Land Titles Office registered mortgage being described as “not applicable” (referring to exhibit WJAD2 to his affidavit, the “General Request”, form 14, which I will discuss shortly) and also…

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.

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Details

Case: [2020] QSC 315
Decision Date: 14 October 2020, ex tempore

CaseChat Overview and Summary

The applicant, Davidson, sought to stay the enforcement of a warrant for possession of his mortgaged property, scheduled for execution on 16 October 2020. The respondent, Suncorp-Metway Ltd, had obtained an order for recovery of possession in February 2019, and now sought to enforce it. Davidson’s application for a stay of execution was predicated on his pending challenge in the Federal Court of Australia to the validity of the mortgage, on the basis that it did not comply with s 78(2)(c) of the Land Title Act 1994 (Qld) because it did not specify a dollar amount as the debt secured, and because the form of the covering page of the standard conditions incorporated by reference into the mortgage included the words “not applicable” in certain parts of it. The application was heard and dismissed by the court.

The court had to determine whether there was any basis for staying the enforcement of the warrant for possession, given the application in the Federal Court of Australia. The court noted that the applicant had not appealed from the order for recovery of possession, nor had he shown any basis to set it aside. The court considered that the applicant’s challenge to the validity of the mortgage, if ultimately successful, would not necessarily have the effect of invalidating the order for recovery of possession, and therefore would not necessarily prevent the enforcement of the warrant for possession. The court also noted that the applicant had not demonstrated any exceptional circumstances that would warrant a stay of execution.

In dismissing the application, the court noted that the applicant had not established any basis to stay the enforcement of the warrant for possession, by reference to the application in the Federal Court of Australia. The court ordered that the originating application filed on 12 October 2020 be dismissed, and that the applicant pay the respondent’s costs on the standard basis.

Orders

Orders of the court

1. The originating application filed 12 October 2020 is dismissed.

2. The applicant pay the respondent’s costs on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Davidson v Suncorp-Metway Ltd [2020] QSC 315
PARTIES:	WILLIAM JAMES ALEXANDER DAVIDSON (Applicant) v SUNCORP-METWAY LTD ABN 66 010 831 722 (Respondent)
FILE NO/S:	BS 10881 of 2020
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	14 October 2020, ex tempore
DELIVERED AT:	Brisbane
HEARING DATE:	13 October 2020
JUDGE:	Bowskill J
ORDERS:	1. The originating application filed 12 October 2020 is dismissed. 2. The applicant pay the respondent’s costs on the standard basis.
CATCHWORDS:	MORTGAGES – MORTGAGEE’S REMEDIES – POSSESSION – where the respondent mortgagee obtained an order for recovery of possession of mortgaged property in February 2019, and an enforcement warrant for possession of the property is due to be executed on 16 October 2020 – where the applicant applies for a stay of execution of the enforcement warrant, pending delivery of judgment on an application he has made in the Federal Court of Australia, in which he purports to challenge the validity of the mortgage on the basis that it does not comply with s 78(2)(c) of the Land Title Act 1994 (Qld) because it does not specify a dollar amount as the debt secured, and because the form of the covering page of the standard conditions incorporated by reference into the mortgage includes the words “not applicable” in certain parts of it – where there has been no appeal from the order for recovery of possession, and no basis shown to set aside that order – whether any basis to stay execution of the enforcement warrant, by reference to the application in the Federal Court of Australia, has been established
COUNSEL:	G D Skelton (sol) for the applicant D J Ananian-Cooper for the respondent
SOLICITORS:	Allaw Queensland for the applicant Gadens Lawyers for the respondent