HMJ v PES

[2013] QSC 36

SUPREME COURT OF QUEENSLAND

CITATION:

HMJ v PES [2013] QSC 36

PARTIES:

HMJ
(applicant)
v
PES
(respondent)

FILE NO/S:

6645 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

30 January 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 January 2013

JUDGE:

Atkinson J

ORDER:

The application is dismissed.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – where the applicant applied for property adjustment orders pursuant to Part 19 of the Property Law Act 1974 (Qld) – where the matter came on for trial and orders made, but there was no appearance by the respondent – where an enforcement warrant was made – where the respondent applied to stay an order made by the court, to stay the enforcement of a warrant, and to set aside the warrant order – whether the enforcement of the warrant should be set aside

Property Law Act 1974 (Qld), Part 19

Uniform Civil Procedure Rules 1999 (Qld), r 907

COUNSEL:

P White for the applicant
The respondent appeared on his own behalf

SOLICITORS:

ABA Lawyers for the applicant
The respondent appeared on his own behalf

HER HONOUR:  This is an application by the respondent, PES, to stay an order made by this Court on 19 April 2012, stay the enforcement of a warrant number 295 of 2012, set aside the warrant order made and for costs.

PES brought this matter on urgently ex parte yesterday because on 18 January 2013, he received notice that an enforcement warrant would be executed at his property today, 30 January 2013.  The delay in his application to the Court has caused some difficulty, as the warrant is currently being executed, however, it may be attributed to his not being represented.

The urgent question before me is whether or not, in particular, the enforcement of the warrant should be set aside.  The other orders sought are essentially ancillary to that. If the other orders made should not be set aside or stayed, and there is no reason to set aside enforcement because the enforcement warrant is regular, then he will not be successful in any part of his application.

The rule regarding the application to set aside the enforcement of a warrant is r 907 of the Uniform Civil Procedure Rules 1999 (UCPR), which provides that a person affected by such an order may apply to the Court to set aside the warrant or stay enforcement at any time.  Of course, in order to stay the enforcement of a warrant, some reason would have to be shown for the enforcement of a warrant to be stayed.

In this case, it is necessary to look at the history of the matter to determine whether or not that should happen.  I refer first of all to the affidavit of PES which accompanied his application.  It asserts, essentially, that when he found the enforcement warrant and possession of land order on his front door on 18 January 2013, that was the first notice he had of the matters in this proceeding.  In order to determine whether or not that submission is made good, it is necessary to look at the proceedings that were instituted and the efforts made to inform PES of the proceedings by the solicitor for the applicant.

The proceedings which form the basis of the enforcement warrant were commenced on 14 July 2008. On that date, HMJ applied for property adjustment orders pursuant to Part 19 of the Property Law Act1974, for a particular division of property between herself and the respondent.

The respondent's solicitors, Carter Naughton Rice, confirmed to the solicitors for the applicant that they had instructions to accept service of the application for property adjustment orders.

The Court file demonstrates that an affidavit was filed with the application and a statement of fact of financial circumstances.

The only documents filed on behalf of the respondent were an application by the respondent's solicitors to withdraw as solicitors for the respondent to these proceedings, which was filed on 20 October 2008.  It was supported by an affidavit by the solicitor for the respondent, referring to orders made by consent on 10 September 2008 which required the respondent to file his statement of financial affairs and affidavit material within 14 days.

Mr Naughton, the solicitor for the respondent, said that he met with the respondent on 4, 9 and 11 September 2008, to confer and prepare an affidavit responsive to the affidavit by the applicant and referring to, again, the respondent's own evidence in relation to matters in dispute.

Mr Naughton swore that on 12 September 2008, he forwarded a draft affidavit and precedent statement of financial circumstances by email to the respondent, asking him to review it, add the details requested and provide instructions.  He also sent by email a completed draft of the respondent's statement of financial circumstances from the material to date.

Mr Naughton swore that on 15 September 2008 a personal assistant at his office received a telephone call from a person identified only by his first name, saying that the respondent was in hospital and that he would do whatever he could to assist in the respondent's matter.

Mr Naughton swore that on that day he called the respondent on his mobile telephone and requested by voice message that he call him back.

On 16 September 2008, the solicitor forwarded a letter both by post and email to the respondent in which he enclosed a copy of the order of 16 September 2008 and referred to paragraph 1 of that order.  He sought urgent instructions and asked if there was any impediment that the respondent contact him.

Later that day, a personal assistant at the office spoke to the person whose first name had been given, and he said that he would attempt to have the respondent telephone the solicitors' firm.

Various correspondence took place by telephone and email, but there was never any response from the respondent. 

The solicitor sets out in great detail his attempts to contact the respondent.  He says that the last known residential address for the respondent is the address at Oxford Terrace, Taringa, and gives the last-known postal address.

PES has confirmed in the affidavit filed yesterday that that is his residential address, and has been his residential address at all times, although he said in oral submissions today that sometimes mail to that residential address is delivered to another residential address, Oxford Terrace, Taringa.

A further affidavit by Mr Naughton was filed on that application, in which he deposed to having sent the application and all of the material to PES at the address that he had for PES.

On 29 October 2008, Justice Daubney granted leave to the respondent’s legal representatives to withdraw as solicitors for the respondent to the proceedings, and ordered the respondent to pay the costs.

It is not necessary to go through the whole of the file, except to state, as I have previously said, that, until the respondent filed the present application, all of the documents thereafter were filed by the applicant.

It suffices this morning to go to an application made on the 19 December 2011 in which the applicant applied to the Court for an order that the respondent's signature on the request for trial date be dispensed with. 

Filed with that application was an affidavit by the solicitor for the applicant, setting out the circumstances in which the respondent had refused to provide any further disclosure once he became self acting, that he failed to comply with the consent orders, that he failed to respond to the letter asking him to sign the request for trial date, and confirming that he resided at Oxford Terrace, Taringa, to which all the correspondence had been sent.

In addition, the solicitor deposed that he had also sent the relevant material to the post office box address which had been provided by the solicitors who had acted for the respondent.

On 24 January 2012, Justice Philippides of this Court made an order that the respondent's signature on the request for trial date be dispensed with pursuant to r 469(4) of the UCPR, and that he be given notification of the trial date at his last-known residential and postal address.

There is an affidavit by a legal secretary at the solicitors for the applicant deposing that a letter was sent to the respondent advising him of the trial date of 19 April 2012, and of the orders that had been made.

The matter came on for trial on 19 April 2012.  There was no appearance for the respondent.  Orders were made by me on that hearing on 19 April 2012.  One of the orders sought by the respondent today is that that order be stayed.  That order was made regularly upon proper notice being given to the respondent.  I am satisfied that there is no reason to set aside that order.  The question is, should it be stayed. 

It is clear from the material filed that PES was given proper notice of that order and there is affidavit material from the solicitor for the applicant setting out in detail everything that had happened prior to and after the making of that order, and seeking a further order for substituted service in view of the lack of response from the respondent.
An application was made for an enforcement hearing and an application for substituted service was made with regard to that.  On 15 November 2012 Justice Mullins of this Court ordered that personal service of all documents to be served on the respondent within the proceedings be dispensed with and pursuant to r 116, substituted service be effected by post on the respondent at the post office address that had been given and the residential address at Oxford Street, Taringa in the State of Queensland, with service deemed to be effected two business days after the posting.

Thereafter, the enforcement warrant was made on a hearing before a Judge of this Court, and subsequently, the enforcement warrant was issued.

I am satisfied that the proceedings have been conducted entirely regularly by the applicant and that the respondent did have notice of what was occurring and that there is no reason to stay any of the orders or to set aside the enforcement of the warrant and the application should be dismissed.

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