Donato v Angi
[2025] QDC 96
•27 June 2025 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Donato v Angi [2025] QDC 96
PARTIES:
ROCCO DONATO
(Applicant)
v
ROSA ANGI (NÉE DONATO)
(Respondent)
FILE NO/S:
1228/23
DIVISION:
Civil
PROCEEDING:
Originating Application
ORIGINATING COURT:
Brisbane District Court
DELIVERED ON:
27 June 2025 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
27 June 2025
JUDGE:
Porter KC DCJ
ORDER:
1. Pursuant to rule 832 of the Uniform Civil Procedure Rules 1999 (Qld), the Registrar of Enforcement or a person authorised by the Registrar of Enforcement sell the Respondent’s interest in the property located at 45 Winchester Street, Hamilton, Queensland 4007 (Lot 2 on Registered Plan 855348), being the land contained in title reference 18537226 which is the subject of the enforcement warrants for seizure and sale of property issued on 3 November 2023 (and renewed on around 23 October 2024) and 13 August 2024, to Rosanna D’Astuto, Michele Donato, and Gabrielle Eufemia for $900,000.
2. For the purposes of complying with order 1, the Registrar of Enforcement or a person authorised by the Registrar of Enforcement enter into a contract of sale substantially in the same form as exhibit MD-3 to the affidavit of Michele Donato affirmed on 20 March 2025.
3. Pursuant to UCPR r 797, the Respondent pay the Applicant’s costs of this application, including reserve costs.
COUNSEL:
B. King for the applicant
The respondent appeared in person
SOLICITORS:
Butler McDermott for the applicant
This is an application by Mr Donato for orders under rule 832 of the Uniform Civil Procedure Rules 1999 (UCPR). That rule provides:
832 Nature of sale
(1)Unless the court orders otherwise, an enforcement officer must put up for sale by public auction all property liable to be sold under an enforcement warrant—
(a) as early as possible, having regard to the interests of the parties; and
(b) at a place and in a way appearing to the enforcement officer to be suitable for a beneficial sale of the property.
(2)The public auction may be conducted by the enforcement officer or a person authorised by the enforcement officer.
(3)Property sold by public auction must be sold under the following conditions of sale—
(a) for goods, if the person conducting the auction considers the particular lot in which the goods are to be auctioned is worth less than $500, or for other property if the enforcement debtor agrees—at the best price obtainable;
(b) otherwise, if the reserve is reached—to the highest bidder;
(c) if the person conducting the auction considers there is a dispute as to who is the highest bidder, the property is to be reauctioned and knocked down to the highest bidder.
(4)However, before a sale by public auction, a party or an enforcement officer may apply to the court for an order that the property be sold privately.
(5)The application must be supported by affidavit.
(6)If the applicant is a party, the applicant must also serve the enforcement officer with the application.
(7)If, on application by the enforcement creditor, the court makes an order that the property be sold privately before a public auction, the court may order that the enforcement creditor pay any costs already incurred by the enforcement officer for the auction.
(8)If property put up for sale at public auction is not sold by auction, the enforcement officer may sell the property privately—
(a) for an amount not less than the highest bid made at the auction that the enforcement officer considers is a reasonable amount for the property; or
(b) if no bid was made at the auction—for an amount the enforcement officer considers is a reasonable amount for the property; or
(c) in accordance with a court order.
(9)In this rule— reserve, for property to be sold at auction, means the reserve amount set by the enforcement officer, being an amount the enforcement officer considers is not less than a reasonable amount for the property.
By way of background, the respondent enforcement debtor, Ms Angi, is the registered proprietor of a one third fee simple interest in real property at 45 Winchester Street, Hamilton. Mr Donato is an enforcement creditor. Ms Angi’s interest is held as tenants in common with members of her family as co-owners. The property was originally purchased by the applicant and respondent’s parents for them and their brother as an early inheritance. The applicant subsequently gifted his interest to his children.
The property is improved with a six-unit residential complex, a common foyer and internal stairs, however, it has not been strata titled. While co-owners reside in two of the six units, the remaining four are leased to unrelated parties. There is no co-ownership agreement in place.
The proceeding was commenced by the applicant against the respondent by originating application on 9 May 2023, nearly two years ago. The applicant sued on amounts he alleged had been advanced between April 2020 and March 2021, which had not been repaid, contrary to written loan agreements. That originating application resulted in a judgment by Judge Allen KC by which his Honour ordered the respondent to pay $222,000 plus interest to the date of judgment and costs, including reserved costs on an indemnity basis. His Honour made that order on 15 September 2023.
The path of the proceedings are relevant. As noted, the matter was filed on 9 May 2023. Its first return date was before Judge Kent on the 9th of June. It can be observed that the application for judgment for the debt was not brought on short notice. The matter came before Judge Kent on the 9th of June. The transcript of this hearing is contained in an affidavit of Mr Buckley at paragraph 16. At that hearing, Ms Angi informed his Honour that the reason she was not ready to proceed was owing to the fact she had a fall. While she was planning to get advice, she had not approached anyone yet. On that basis, his Honour granted a one-month adjournment for Ms Angi to obtain evidence. There was no suggestion, it seems, of a substantive defence at that stage. His Honour adjourned the matter to the 10th of July.
On the 10th of July, the matter came before Judge Gardiner. No material had been filed in substantive resistance to the application. As I understand it, Ms Angi’s excuse, as detained at page 38 of the exhibits to Mr Buckley’s affidavit was that she was again sick or injured. It is unnecessary to go into the detail. I refer to transcript 110 at page 38 from lines 23 to 32. Ms Angi also said, at page 39 of the exhibits, that she had been bedbound, very sick and had not even had a chance to talk on the phone, and that she needed more time to get proper representation. His Honour observed that it appeared from letters written that she was not disputing the debt, but she flagged putting forward a counterclaim, disputing the figure and so on.
Ms Angi failed to comply with the extended timelines Judge Kent provided. When Judge Gardiner raised this with her, she claimed that she had not received a copy of the sealed orders. However, Ms Angi was present in court when the orders were made. Nevertheless, she submitted that she was on painkillers, and could not really remember what happened. She alleged duress on signing of the contract on page 112 at exhibits 40, mentioned being in the middle of a divorce proceeding and so on. His Honour made an order adjourning the application, requiring Ms Angi to obtain an affidavit from a medical practitioner if she was going to rely broadly, on medical issues again. His Honour adjourned the application to 25 August.
On that day, the matter came before Judge Rosengren. Again, allegedly because of ill health, steps had not been taken by Ms Angi. A doctor’s certificate in a form more or less the same as the one tendered today was put forward in terms that she will be unfit to continue her usual occupation/attend court. The difficulty then and now is that it does not appear Ms Angi has a usual occupation. I understand her to be unemployed which gives one cause to wonder about the attention given to this certificate and to the particular problems that it reflects. In any event, on that occasion, Judge Rosengren provided yet another adjournment, requiring any doctor to attend for cross-examination on any future application for an adjournment. That did not happen, and ultimately Judge Allen then made the orders. There was no sign of any case for duress or any counterclaim before his Honour.
The applicants then began the process of seeking to obtain execution of his Honour’s judgment. The applicant obtained an enforcement warrant for the seizure and sale of the respondent’s interest in the Hamilton units on 3 November 2023. It is fair to say that the applicants have not acted particularly aggressively on that enforcement warrant or enforcement against the Hamilton property at all. It was obtained in November 2023. It was extended in November 2024 to November this year. In August 2024, a second enforcement warrant was obtained in respect of the costs for the originating application.
The application is for an order allowing Ms Angi’s interest as co-owner in the property to be sold under the warrants privately rather than by public auction. It is in that context that rule 832 arises. Mr King observed that he had not been able to identify reported decisions dealing with an application for a private sale. In what I thought was a sound articulation of some of the discretionary considerations, Mr King pointed to the following matters:
16. That is not to say that an application of the present kind is necessarily rare or unusual: in Hunter BNZ Finance Ltd v Plateau Holdings Pty Ltd [1985] 2 Qd R 97 at 98, Justice Thomas (as his Honour then was) observed in respect of order 48 rule 6(1) of the Rules of the Supreme Court (which was in similar terms to UCPR r 832(4)) that “a sale of goods or land under a writ of fi. fa. is commonly authorized to occur under private treaty pursuant to a direction by the Court under O. 48, r. 6”.
17. But given the apparent want of any relevant reported decisions, what follows is a distillation of what the Applicant says ought to be the relevant considerations on an application of this kind.
18. Firstly, the District Court has the power to make an order that property be sold privately. That power is conferred by section 69(1)(b) of the District Court of Queensland Act 1967 (Qld), given this is a proceeding in respect of which this Court has jurisdiction, and the Supreme Court has an inherent power to order that the sale of the property of an enforcement creditor occur privately (as to the latter point, in Hunter BNZ Finance, Justice Thomas referred to an inherent power to make a direction of the kind there sought at 99, and the existence of that power appears also to have been accepted by Lucas J in Anderson v Liddell [1967] Qd R 410 at 412).
19. Secondly, the default position is that a sale of real or personal property by an enforcement officer occur by public auction: UCPR r 832(1). But that default position does not require nor suggest that there should be any predisposition against the making of an order that property be sold privately, in an appropriate case.
20. Rather, in the absence of any express restriction in the UCPR on the exercise of the discretion to order a private sale (which is itself expressly contemplated by UCPR r 832(4)), the discretion must be a broad one, to be exercised judicially.
21. Thirdly, the overriding consideration in an exercise of that discretion must be whether a private sale will or is likely to achieve a reasonable value for the relevant property.
22. That is what the default position set up by UCPR r 832(1) and (3)(b) appears calculated to achieve: a sale of property for no less than what the enforcement officer considers a reasonable amount for it.
23. A reasonable amount will not necessarily be the market value of the relevant property. In Owen v Daly, in the context of discussing the common law duties owed by sheriffs in selling property, Dean J said “it is well recognised that compulsory sales under legal process rarely bring the full value of the property sold”.
24. In Anderson, Lucas J added that the sale of real property in that case for $16,500 at auction rather than the $24,500 offered for a private sale was simply an “example of the self-evident proposition that a property will not realise upon a forced sale as much as it would upon a private sale conducted at leisure”.
25. But if a private sale is unlikely to achieve a reasonable value for the relevant property, then there will be no reason to depart from the default position (that a sale be by public auction).
26. Fourthly, there must be some reason why a private sale is more appropriate than a public auction in the circumstances of a particular case, which will involve a balancing of competing prejudices to the enforcement creditor and enforcement debtor if a private sale is ordered.
27. That weighing exercise will be informed by the overriding philosophy of the UCPR as expressed in rule 5, including facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
28. In the Applicant’s submission, if a public auction is unlikely to result in the sale of the relevant property, that will be a persuasive (if not determinative) reason why a private sale is more appropriate.
I should say, having read those submissions, they accord with the views I would independently form and the core proposition in paragraph 28 must surely be correct. The difficulties involved in realising part interests in properties held in co-ownership by auction are well known. Ordinarily, the solution is a statutory trust for sale. That is not the approach adopted here.
It would be observed, though, if there was a statutory trust for sale, exactly the position sought by the applicant could arise. That is, on a trust for sale, leave likely would be given to other co-owners to bid and to set off their share against the price to be paid.
The real question is whether the proposal from the co-owners is a reasonable one. I have before me a valuation from an arm’s length valuer. The valuation involves a number of assumptions favourable to the judgment debtor, including valuing on the basis that the units had been strata titled and refurbished somewhat. Additionally, there is a deduction in respect of some of those costs from a value calculated in that way.
Since that valuation was given, it is a matter of public record that interest rates have dropped, which puts upward pressure on price. However, I have a supplementary report which very fairly reassesses the value and increases the amount which is identified as a reasonable sale price. For the reasons more fully set out in Mr King’s submissions which are at court document 36, starting from paragraph 29, it seems to me that there are very strong factors favouring a private sale in this particular case, on the terms of the contract which I considered on the last occasion, being a standard form REIQ contract with a 30 day unconditional settlement.
There is very little by way of contradictory evidence before me from Ms Angi. I now turn to the progress of this litigation to consider Ms Angi’s adjournment application made orally on my invitation today.
This matter was first before me on the 21 May. On that day Ms Angi attended by phone and sought an adjournment. She had been served with the material by post on 2 May 2025. That was 19 days before the hearing date. Ms Angi raised various matters of disadvantage. I granted an adjournment and made orders that she file and serve any affidavit she wanted to rely on by the 18th of June, which was four weeks away at the time, with time for the respondent briefly to respond and for the hearing to resume on 27 June 2025, today.
Ms Angi filed no material at all, nor did she make contact with my Associate about that until the last day or so. She did provide, and I have directed it be placed on the file, an outline of argument. The outline referred to two affidavits relied on by the applicants plus CoreLogic reports on the units and on a house presently owned by her and her ex-husband at 4 Harrow Close, Bridgeman Downs.
Ms Angi once again relied on medical certificates which were ultimately tendered on the hearing, one from 19 June, saying she will be unfit to continue her usual occupation/attend court from 19 June 2025 to 3 July 2025. I have already observed the unusual nature of that observation, and in any event, all it says is that she will be unfit to attend court. It says nothing about her ability before or after that letter to take the steps necessary to prepare for this hearing. She also relied on a medical certificate from her chiropractor, dated 20 June 2025. I am not certain about the scope of expertise of chiropractors to give opinions on ability to prepare for Court or attend by telephone.
One might imagine that it extends to identifying the existence of chronic musculoskeletal issues. In any event, that report opines that she has limited capacity to complete normal duties, to move about, and that she avoid lengthy walks and prolonged sitting. It opines that Ms Angi would be more suited to attend court virtually, if possible, which of course is what we have done.
Neither of those reports provide any proper basis for me to conclude that it was not possible for Ms Angi to have prepared material for today’s hearing.
Notwithstanding that, Ms Angi initially said she wanted to proceed today.
She sought to rely on primarily a CoreLogic report. It is not an expert valuation. To be fair to CoreLogic, it says, “Valuation estimate”, and that is probably what it is, of the property at 4 Harrow Street. What Ms Angi put to me was that she opposed the making of these orders because I ought to make orders in effect preventing the judgment creditor from executing in the way it proposes to do, in favour of compelling the creditor to wait to be paid from her interest in 4 Harrow Close. Without any notice to the other side apart from providing a CoreLogic estimate on or about the day of the hearing, she advanced this argument: that the other side could be paid from her net proceeds of the sale of Harrow Close.
The difficulty is that that property is the subject of Family Court orders made on 8 February 2024 and amended on 8 March 2024. The effect of those orders (which appear in court document 35 at exhibits page 10) is that Ms Angi was to leave that house within 60 days of the date of the orders and provide the keys, that neither party encumber or further encumber the matrimonial home without consent of the other party in writing (which I observe makes it very difficult for me to accept any form of undertaking which would bind the proceeds of sale to be paid to the judgment creditor in this case) and that the husband, acting as trustee for sale, sell the property and discharge various mortgages. The fate of the net proceeds of sale, which I am unable with confidence to identify either from the balance of the order or otherwise, is dealt with in paragraph 8(h) which provides that in the event that house is sold for more than $975,000, the balance proceeds of sale are to be received 68 per cent to Ms Angi and 32 per cent to her ex-husband.
There is a CoreLogic estimate at 1.5 million. The value in the order is about 1 million, meaning that there might be net proceeds of sale of $500,000. There will obviously be costs of sale and so on. There is also work being done to prepare the house for sale. Accordingly, it is impossible for me to be confident that there would be so much. It may be less, but even assuming that, 68 per cent of that, call it 70 per cent, is $350,000. This amount will not be sufficient to meet the judgment debt, including for example, the debt of judgment for costs, accruing income and interest. I do not have any confidence at all, based on the evidence before me, that the debt would be able to be met from that source.
Ms Angi also sought to raise matters going to the valuation. She relied on a CoreLogic statement which I do not find of any assistance at all in assessing the valuation as valid or not. The valuation is carefully prepared. It has got the documents it relies on attached to it. There really is no credibility to an attack on it in that way.
Ms Angi also raised, again, without any warning, a complaint about a particular observation in one of the facts related to the valuation. It seems unlikely to me that that matter, even if her position is correct, would have a material effect on the valuation, and it would be quite unfair to act on it, having been stated for the first time ever at the hearing. Ultimately, I suggested to Ms Angi that her evidence, such as it is, could not possibly justify me dismissing the application for the reasons I have given.
She then sought an adjournment at that stage. The applicants resisted that adjournment. They took me through the history of this matter, which I have already dealt with. I have already dealt with the medical reports which do not provide any foundation for the conclusion that there could not have been compliance with my orders from the last occasion or at least substantially more compliance than had occurred.
Ms Angi submitted that she had been in a lot of pain, that she had been moving house, that she had been on antidepressants and so on. The difficulty is, frankly, that if circumstances are truly as consistently bad as appears to be from her appearances before Judge Kent, Judge Gardiner, Judge Rosengren, Judge Allen and me on two occasions, the court does not have a sufficient basis to think if a further period was given, that there would be compliance, the court has little basis to have optimism that the alternative mode of paying this debt would actually be able to be carried out.
I note in that regard, that it appears from admissions made by Ms Angi in the course of making her submissions that the reason Harrow Street has not already been sold is that she appealed the Family Court property settlement after trial (in which she received 68 per cent, more or less, of the net pool). That appeal was determined in July, at the latest, last year. She then did not move out of the house until the 5th of May this year. There is no explanation as to why she did not, but even if there was some reason or some excuse, the fact is that if she had complied with those orders promptly, she would not be in the position she is now in. Rather, the house would have likely been sold. The funds would have been in place, and frankly, if the net proceeds had got anywhere near the debt, one might think that might have been the end of it.
In any event, she vacated the house on the 5th of May, and notwithstanding that, the sale process still has not begun. That tends to support my concern, not only about whether the net proceeds will be sufficient to meet the judgment debt, but the timing that might be associated with any sale.
It is common to have sympathy for self-represented parties trying to grapple with their obligations in conducting proceedings. However, for the reasons I have given, it seems to me that there would be no good purpose granting this particular respondent further time, and that to do so, in the circumstances of the history of this litigation, would tend to bring the administration of justice into disrepute.
It must be kept firmly in mind that a represented party is not to be disadvantaged because another party is unrepresented. There is a limit to the indulgences that can and should be given, consistent with maintaining confidence in the fairness and impartiality of the court system, and for the reasons I have given, in my respectful view, it is not a case where an adjournment should be granted.
For those reasons, I refuse Ms Angi’s application for adjournment. I make orders in terms of the judgment creditor applicants’ draft which provides:
1. Pursuant to rule 832 of the Uniform Civil Procedure Rules 1999 (Qld), the Registrar of Enforcement or a person authorised by the Registrar of Enforcement sell the Respondent’s interest in the property located at 45 Winchester Street, Hamilton, Queensland 4007 (Lot 2 on Registered Plan 855348), being the land contained in title reference 18537226 which is the subject of the enforcement warrants for seizure and sale of property issued on 3 November 2023 (and renewed on around 23 October 2024) and 13 August 2024, to Rosanna D’Astuto, Michele Donato, and Gabrielle Eufemia for $900,000.
2. For the purposes of complying with order 1, the Registrar of Enforcement or a person authorised by the Registrar of Enforcement enter into a contract of sale substantially in the same form as exhibit MD-3 to the affidavit of Michele Donato affirmed on 20 March 2025.
3. Pursuant to UCPR r 797, the Respondent pay the Applicant’s costs of this application.
I order the respondent pay the applicant’s costs of this application, including reserved costs.
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