Experien Pty Ltd v. Clegg

[2009] QDC 252

[2009] QDC 252

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2620 of 2008

EXPERIEN PTY LTD
(ACN 110704464)

Plaintiff

and

GEORGE ALEXANDER CLEGG

and

LEONIE MARYANNE CLEGG

and

G & L CLEGG FAMILY TRUST

Defendant

Defendant

Trustee

BRISBANE

..DATE 25/06/2009

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 817, r 885 - receivers appointed under enforcement warrants in respect of a monetary judgment - whether existence of an enforcement warrant on the title to the judgment debtors' property precluded the further enforcement warrant - bailiff's sale under original failed as defendant had instructed registered mortgagee not to advise amount of indebtedness to it.

HIS HONOUR:  This is an application for the Court to order or permit the issue of an enforcement warrant in the form of appointment of a receiver in aid of execution in respect of a judgment of $104,970.39 obtained by the plaintiff on the 11th of December last year. 

The Registrar declined to make the order, being of the view that Rule 817 did not authorise it, and that in any event it was not possible to have two enforcement warrants in support of the same judgment registered against particular land.  Rule 885 provides that a receiver may be appointed in an enforcement warrant even though no other proceeding has been taken for enforcement of the money order to which to warrant relates.

Here the plaintiff proceeded in the ordinary way, but has been frustrated in obtaining any satisfaction at all at the bailiff's auction, only one bid in the illusory amount of $10 was received and understandably rejected.  The difficulty was that the bailiff could not advise those attending the auction of the payout figure in respect of the National Australia Bank's registered mortgage, which enjoys priority.  It appears that the judgment debtor, who's the third defendant, has instructed the bank not to provide that financial information to the bailiff.

It strikes me that our system of enforcement of money orders, by way of execution, may require some reconsideration if it is the case that a bailiff cannot obtain such information.

The plaintiff now proceeds on the basis that if a receiver is appointed the receiver will have the entitlements of the owner of the property, and in particular, to get the necessary information from National Australia Bank for the purposes of any sale of the property attracting sensible offers.  The defendants' title to the property appears from Exhibit GGR1 to the affidavit of G G Roberts filed 22 June 2009.  Ms Pierce provided (Exhibit 1) a more up to date title search.

The application didn't identify the receiver.  Ms Pierce has since filed a consent of Messrs Joiner and Collins, which hasn't reached the courtroom; she's been able to obtain leave to read and file a second original of that document.  It seemed to me appropriate to specify that their appointment was joint and several so that if there's any inability of either to act the other may act alone.

There appears to be no form for an enforcement warrant of this kind, which is the reason for the insertion in the order of a requirement that the enforcement warrant be issued "in a form satisfactory to the Registrar."

Without considering the matter in any depth I was inclined to go along with Ms Pierce's proposition that there's nothing wrong with there being two warrants registered against the title at the same time.  The proposal at the moment is to do nothing further by way of enforcement by the courts own officers, rather for a sale to be by the receiver.  That may change. 

Ms Pierce confirmed that the plaintiff had given instructions to undertake, for purposes of satisfying the Registrar, to withdraw the currently registered enforcement warrant.  It seemed to me appropriate to take advantage of that undertaking as part of the court's order.  If there does emerge a requisition from some appropriate quarter to withdraw the current enforcement warrant and Ms Pierce wishes to "dig her heals in", so to speak, the order preserves the possibility of the plaintiff coming back to the court to seek to be excused from compliance with that undertaking.  The issue can be considered in depth, if that stage is reached. 

Some time was spent considering what special provisions, if any, might be necessary to avoid a repetition of the bailiff's difficulty with the National Australia Bank.  That's been attended to by a catch-all provision added to the list of receiver's powers in the following terms, and I quote, "Generally, do all things which the third defendant as a registered proprietor might do with respect to the land, including obtaining payout figures for any mortgage or charge over it."

As a model for the order, Ms Pierce relied on the order made by Justice Douglas on 5th August 2004 in RACQ‑GIO Insurance Limited v. Paul Francis John Webber and others, Brisbane Registry number 5160 of 1998, that being an order made under a different Rule. 

The third defendant didn't appear when called today.  It was not necessary to serve her, given the terms of Rule 817(2).  If I haven't made it clear above the provision which the Registrar considered insufficient to authorize her to act as requested, was sub-rule (5).

So, order as per initialled draft.

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