Express Finance Solutions Pty Ltd v. Mullee

[2004] QDC 521

[2004] QDC 521

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4312 of 2004

EXPRESS FINANCE SOLUTIONS PTY LTD	Plaintiff
and
LINDA MULLEE	Defendant

BRISBANE

..DATE 26/11/2004

ORDER

CATCHWORDS: Ex parte application for Mareva type order to protect balance proceeds of sale of property over which applicant/lender was given security - prior mortgagee in process of exercising power of sale, its solicitors indicating willingness to retain balance proceeds if a court order obtained - applicant had proceeded in Magistrates Court to recover the debt - Magistrates Court proceeding transferred under r 79 of the District Court of Queensland Act and consolidated with application District Court's jurisdiction to make the order sought under s 69 and/or UCPR required an extant District Court proceeding within s 68.

HIS HONOUR: This is an application brought in reliance on the Court's powers under section 69 of the District Court of Queensland Act to make orders in aid of a claim for repayment of a loan which the applicant is pursuing in the Magistrates Court at Southport. The proceedings are 4687 of 2004. Exhibit 1 is a sealed copy of the claim, Exhibit 2 a sealed copy of the statement of claim.

In the view I take of things the Court may grant such relief only in support of a claim being pursued which comes within the District Court's jurisdiction as conferred by section 68. 

I do not accept that the Court's jurisdiction to grant Mareva orders and the like under the UCPR exists in a vacuum, so to speak, or that it can be exercised in aid of proceedings in another Court.

For that reason Mr Moore, appearing for the applicant, has taken up the Court's invitation to make oral application under section 79 of the Act for the transfer of the Magistrates Court proceeding to this Court.

Such an order will be made and, further, an order consolidating it with this application.

...
HIS HONOUR:  The material before the Court, which has been supplemented by brief oral evidence of the deponent Dennis Ian Grant, establishes the making of a short term loan to the defendant by his company features of which included her obligation to make weekly repayments of a sum of almost $2,000.

Exhibit 3 is a copy of a collateral security agreement in support of the loan - the original of which Mr Grant identified from the witness box.  By clause 8.1 of that document where there is default - as there has been by the defendant/respondent, who has paid nothing - the security becomes enforceable.  The applicant has discovered that the Adelaide Bank has a prior security over the property and, indeed, is in the course of exercising its power of sale as mortgagee. 

The Bank's solicitors, MacGillvrays, according to a letter of theirs before the Court are willing to hold any proceeds that may remain after satisfaction of their and the Bank's just demands more or less as if that amount were paid into Court,
provided a Court order is obtained.

The Court is satisfied it is appropriate to act on an ex parte basis to preserve the situation, given that the respondent cannot be served.  She is apparently travelling overseas; it is asserted she has taunted the applicant, stating in effect that it will not get paid.  The usual undertaking as to damages is offered.

...

HIS HONOUR:  The order makes it clear that the respondent, if and when she comes to hear of the order, and is troubled by it, has leave to apply to the Court to seek to have it changed.

I make an order in terms of the initialled draft.

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