Davidson v Suncorp-Metway Ltd

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.