Ge Automotive Financial Services Pty Ltd v Cheihk

[2009] QDC 360

[2009] QDC 360

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2841 of 2009

GE AUTOMOTIVE FINANCIAL SERVICES PTY LTD	Plaintiff
and
ZOE CHEIHK	Defendant

BRISBANE

..DATE 14/10/2009

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 250, r 377

Appropriate terms of ex parte order for "preservation" of motor vehicle at suit of mortgagee under an "old system" mortgage

HIS HONOUR:  The Court has made an order in terms of the initialled draft which provides as follows. 

"Upon the Plaintiff giving the undertaking filed herein on 9 October 2009 and its solicitors understanding to provide for purposes of paragraph 3 below a pro forma affidavit bearing the title of the proceeding.

THE ORDER OF THE COURT IS THAT:

1.The initial hearing of the Application filed 2 October 2009 ("the application") proceed on an ex parte basis.

2.Pursuant to Rule 250 Uniform Civil Procedure Rules 1999 ("UCPR"), that the Plaintiff (whether acting by itself, its servants or agents or any of them or otherwise howsoever):

(a)Take possession of a motor vehicle better described as a Black Porsche 911 Turbo (4wd) 996, Queensland Registration number CHEIHK, VIN Number WPOZZZ99Z5S670070, Engine Number 64500562, 2d Coupe ("the Vehicle");

(b)Is authorised to enter the address at:

i.2 Samuel Place, Sinnamon Park, QLD, 4073; or

ii.Which the Vehicle is located in from time to time,

("the said premises") to take possession of the Vehicle.

3.If possession of the Vehicle has not been obtained by the Plaintiff prior to or upon service of this Order upon the Defendant, the Defendant shall within seven (7) days of service of this Order upon the Defendant file and serve an affidavit setting out to the best of the Defendant's knowledge and belief the following information:

a.The names and addresses of the agents of the Defendant or persons who are or who have been in possession of the Vehicle.

b.The times during which the persons described in paragraph 3(a) of the Order have been in possession of the Vehicle.

c.The location at which the Vehicle is located as at the time and date of service of such Order ("the current location").

d.The locations at which the Vehicle has been located ("the former locations").

e.The dates upon which the Vehicle has been located at each of the former locations.

f.The persons who, to the best information, knowledge and belief of the Defendant are the current occupants of the current location and the former locations.

4.Any person in occupancy of the said premises at the time of execution of this Order shall forthwith upon service of this order allow entry by the Plaintiff (whether acting by itself, its savants or agents or any of them or otherwise howsoever) to the said premises to search for and take possession of the Vehicle.

5.That if possession of the Vehicle has not been previously obtained prior to service of this Order, that pursuant to Rule 250 UCPR and all other empowering provisions, that the Defendant cause by itself and its agents, for contact to be made with the Plaintiff's agent NCI group Australia Pty Ltd on 03 9428 7755 by 4pm on the next business day following the service of this Order, to arrange collection of the Vehicle.

6.To facilitate service thereof on relevant persons other than the defendant, a copy of the Claim and Statement of Claim in the within proceedings, the within application, the Order and any supporting Affidavit or Court documents be served upon the person in apparent occupancy of the said premises at the time of execution of this Order.  If however, no person is in apparent occupancy of the said premises at the time of execution of the said Order, that a copy of such material be affixed to the front door of such residential premises and subsequently served on the Defendant.

7.The Plaintiff is not to proceed to the sale of the Vehicle for at lease (sic) 28 (twenty-eight) days after the execution of this Order.

8.The costs of today's hearing of the within application be reserved.

9.The further hearing of the within application be adjourned to a date to be fixed.

10.The parties and any person affected by such order otherwise have liberty to apply upon the giving of 2 clear days notices in writing.

11.Such further or other orders as this Honourable Court may seem fit.

Registrar

Signed

Notice under rule 665 Uniform Civil Procedure Rules 1999

If you, being either ZOE CHEIHK (being a person required to perform an act under this Order) or alternatively any person in occupancy of the said premises at the time of execution of this order (being a person required to perform an act under this Order), do not obey this Order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt."

There's been a certain amount of surgery carried out on the draft handed up by Mr Cook as there had been in respect of a similar draft considered by Judge McGill SC in GE Automotive Financial Services Pty Ltd v Laverty [2008] QDC 313 and the order is consonant with his Honour's.

Like others have been made in this Court by Judge Newton and Judge Forno, for example, and have been made in other Courts, as materials made available by Mr Cook establish. The courts have been satisfied that rule 250 applied in such circumstances.

Essentially, the plaintiff is seeking possession of a vehicle of which it is a mortgagee to whom, pursuant to clause 1.2 of the relevant "Loan Contract and Mortgage" the defendant conveyed her interest as beneficial owner.

The provisions of the instrument in section 9 entitle the plaintiff to take possession in the circumstances where default has occurred and it becomes entitled to take proceedings.

I was not prepared to make an order for costs as sought.  Indeed, they were sought an indemnity basis against a defendant who is yet to be served.  I further protected her interests in clause 6 of the order by making it clear that the service required there relates only to service of persons other than the defendant, who is entitled to be personally served.

I've also attempted to make the obligation that order 3 may impose on her less onerous by extracting from the plaintiff's solicitors an undertaking to supply a pro forma of an affidavit which would essentially be form 46 with the proper heading for the proceeding.  On that basis, filing and serving an affidavit will be no more onerous than giving the relevant details to the plaintiff in writing.

The claim erroneously refers to the vehicle of which possession is sought as a "boat".  That ought to be corrected; the solicitors are confident it can be done without leave of the court, given that the claim is yet to be served.  See Rule 377.

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