Hoddinott v Decorative Concrete Services Pty Ltd
[2014] WADC 114
•30 OCTOBER 2014
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HODDINOTT -v- DECORATIVE CONCRETE SERVICES PTY LTD [2014] WADC 114
CORAM: WAGER DCJ
HEARD: 2 JULY 2014
DELIVERED : 30 OCTOBER 2014
FILE NO/S: APP 97 of 2013
BETWEEN: SUSAN HODDINOTT
Appellant
AND
DECORATIVE CONCRETE SERVICES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE HAWKINS
File No :JO ROO332 of 2011
Catchwords:
Appeal from Magistrates Court - Order for bailiff's fees for failed auction (seizure and sale) order - Section 20(3) Civil Judgments Enforcement Act 2004 - Turns on its own facts
Legislation:
Civil Judgments Enforcement Act 2004
Magistrates Court (Civil Proceedings) Act 2004
Magistrates Court Act 2004
State Administrative Tribunal Act 2004
Transfer of Land Act 1893
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: Not applicable
Respondent: Not applicable
Case(s) referred to in judgment(s):
Bank of Western Australia v Connell (1996) 16 WAR 483
Gannaway v Chin [2011] WASC 252
WAGER DCJ: This is an appeal against the decision of the Joondalup Magistrates Court on 31 October 2013. The appeal was filed on 28 November 2013. The grounds of appeal were amended on 4 February 2014 and are:
1.The magistrate was misled into believing that the Property Seizure and Sale Order dated 8th May 2013 was valid. Although the transcript makes reference to the requirement for an extension the Magistrate failed to look at whether the order to which she was adding costs was expired or valid. Two Seizure and Sale Orders were obtained by the Respondent, one on the 28th February, 2011 and another, after the first had expired, on the 8th May 2013. The first is of questionable validity. The second is invalid.
2.The Magistrate was misled into believing that the failed auction occurred on the 4th May, 2013. The failed auction occurred on the 4th May 2012 (this date is clearly specified in the email from Karlene Homan in the respondent's Form 23 Application). This was two months after the expiration of the Seizure and Sale order obtained on 28 February 2011. This seizure and sale order expired on the 28th February, 2012 and this order did not authorise the sale of 'real property'. The attempt to auction the Appellant's property was unlawful and hence, so is the addition of costs, or the granting of a second order for costs for this activity.
3.These factual and other errors resulted in errors of law and other irregularities under s 5, s 102(1)(b), s 102(5), s 103(3) and s 104(2)(e)(ii) of the Civil Judgments Enforcement Act 2004 (WA) and s 36 of the Civil Judgments Enforcement Regulations 2005 (WA).
4.The Appellant applies for orders in accordance with s 105(a) and s 105(b) of the Civil Judgments Enforcement Act 2004 (WA).
On 31 October 2013, her Honour Magistrate Hawkins presiding at the Magistrates Court in Joondalup dealt with the respondent's application to amend the property seizure and sale order dated 8 May 2013. Her Honour ordered that the order include the sum of $1,990.90 being bailiff fees for the failed auction on 4 May 2013.
The balance of the respondent's application was dismissed by consent of the applicant.
On 31 October 2013, Mr Mills had appeared on behalf of Decorative Concrete Services in his capacity as director. Ms Hoddinott had written to the court but she did not appear.
Her Honour Magistrate Hawkins made it clear she was only dealing with costs the respondent had incurred in respect of claim 332 of 2011 which relates to the judgment sum ordered by the State Administrative Tribunal to be paid by the appellant on 9 November 2010.
At ts 5, her Honour said that the respondent should have included the bailiff's fees of $1,990.90 when he made his fresh application for the property seizure and sale order. Her Honour noted that she had been provided with the documentation confirming the bailiff's fees and it therefore could be added on to the sum the respondent claimed.
Her Honour made the order that the property seizure and sale order dated 8 May 2013 be amended to include the sum of $1,990.90. She said (ts 6):
I am satisfied that you've put before me evidence from the bailiff in terms of the costs they incurred in trying to sell the property on 4 May 2012. 4 May 2012 okay. Now, for the record, I consider I've got power to make that award because under the Civil Judgments Enforcements Act, the court is given power to make awards of costs pursuant to sections 17 and 20. So they're the costs I'm making and that's the amendment to the order otherwise I'm making no further order, Mr Mills. Alright?
The magistrate was clearly referring to costs incurred on 4 May 2012 because this was the date when the costs were incurred consistent with ts 6. Reference to 4 May 2013 in the order was a typographical error. The issue is whether the magistrate erred in ordering the cost of the failed auction in respect of the order dated 8 May 2012.
The history of the matter is that as a result of a dispute about the installation of a concrete driveway by the respondent at a property owned by the appellant the Builders Disputes Tribunal determined the appellant had to pay a sum to the respondent. That decision was reviewed by the State Administrative Tribunal. As a result of the review the State Administrative Tribunal ordered the appellant to pay the respondent a reduced sum being $4,455.37. The appellant has not paid this sum.
Pursuant to the State Administrative Tribunal Act 2004 (WA) the respondent proceeded to enforce the appellant's payment of the sum ordered in accordance with s 85:
85.Monetary orders, enforcement of
(1)A person to whom payment is to be made under a monetary order may enforce the order by filing in a court of competent jurisdiction –
(a)a copy of the order that the executive office has certified to be a true copy; and
(b)the person's affidavit as to the amount not paid under the order and, if the order is to take effect upon any default, as to the making of that default.
(2)No charge is to be made for filing a copy of an order or an affidavit under this section.
(3)On filing, the order is taken to be an order of the court, and may be enforced accordingly.
Section 10 Magistrates Court Act 2004 states that the court's civil jurisdiction is set out in the Magistrate's Court (Civil Proceedings) Act 2004.
Part 2 – Jurisdiction of the Magistrate's Court (Civil Proceedings) Act sets out:
4.Term used: jurisdictional limit
In this Part –
Jurisdictional limit means $50 000 and, on and after 1 January 2009, means $75 000.
The Magistrates Court is therefore the appropriate court for enforcement. Civil Judgments Enforcement Act 2004 s 5 relates to judgments to which the Act applies:
This Act applies to and in respect of any judgment given by any of the following courts in the exercise of its civil jurisdiction –
…
(c)the Magistrates Court.
The Civil Judgments Enforcement Act therefore applies to the enforcement of the State Administrative Tribunal order.
Given the appellant has not paid as required under the terms of the order, the respondent properly proceeded to enforce the monetary judgment pursuant to pt 4 Civil Judgments Enforcement Act.
Part 4 s 17 Civil Judgments Enforcement Act sets out that unless the contrary intention appears enforcement order means:
….
(e)a property (seizure and sale order made under s 59).
Section 59 sets out:
(1)In order to recover a judgment debt, a judgement creditor may apply to the court for an order authorising the sheriff to seize and sell the judgment debtor's property to wholly or partially satisfy the judgment debt.
(2)The court may make such an order.
Section 62 states:
(1)A property (seizure and sale) order ceases to operate –
(a)when the judgment debt in relation to which it was made is satisfied; or
(b)when under section 102 it ceases to operate; or
(c)when an order cancelling it has effect under section 103,
whichever happens first.
(2)If –
(a)a property (seizure and sale) order is registered under the Transfer of Land Act 1893 section 133; and
(b)the sale period referred to in that section in respect of the order expires at a time after the order ceases to operate under section 102,
the property (seizure and sale) order is to be taken to remain in operation until the sale period expires, despite section 102.
Section 102 states:
(1)Each of the following operates for 12 months after the day on which it is made or issued —
(a)a property (seizure and delivery) order;
(b)a property (seizure and sale) order;
(c)a warrant issued under section 29(4) or 89(4).
(2)A person in whose favour such an order operates may from time to time apply to the court that made it for the order’s operation to be extended.
(3)The judgment creditor in proceedings in which such a warrant was issued may from time to time apply to the court that made it for the warrant’s operation to be extended.
(4)On such an application, the court may extend the operation of the order or warrant for a period set by the court that is not longer than 12 months.
(5) An order made under subsection (4) has no effect if it is made after the order or warrant referred to in subsection (1) has ceased to operate.
Section 62(2)(a) Civil Judgments Enforcement Act was complied with by the respondent. The property seizure and sale order was registered under the Transfer of Land Act 1893 on the title of the appellant's Como property on 9 January 2012 (Landgate record of Certificate of Title vol 1397 folio 443 L827443).
The sale period is defined in s 133(1) Transfer of Land Act as:
133.Property (seizure and sale) order, registration of etc.
(1)In this section —
sale period, in relation to a property (seizure and sale) order that is registered under this section in respect of a saleable interest, means the period of 6 months after the date of registration or, if the period is extended by an order made under subsection (13), the extended period;
The respondent had applied for and was granted a Form 25 Civil Judgments Enforcement Act property (seizure and sale) order on 28 February 2011. The order sets out that the judgment sum of $4,455.37 is owed in full. This sum is comprised of the court application fee, the sheriff's fee and sheriff's kilometrage as additional cost giving a total of $4,649.07. The order is addressed:
To the sheriff of Western Australia and the bailiff delegate at Armadale:
You are authorised and commanded by this property (seizure and sale) order to seize and sell the saleable interest in property of Susan Hoddinott to wholly or partially satisfy the judgment debt.
Interest payable at 6% p a on $4,455.37, being a daily rate of $0.73 from 9 November 2010 until final payment.
The respondent registered the order pursuant to s 133 Transfer of Land Act on 9 January 2012. Accordingly the order extended for six months until 9 July 2012.
The failed auction proceeded on 4 May 2012. The failed auction occurred within the time period that the property (seizure and sale) order was in effect.
The costs relevant to the failed auction are costs that may be ordered against the appellant pursuant to s 17(a)(e) Civil Judgments Enforcement Act. Section 20(3) Civil Judgments Enforcement Act deals with the making of enforcement and other orders. Section 20(3) states:
When or after making an enforcement order, or any other order, under this Part the court may make any necessary ancillary or consequential order and may do so on terms as to costs or otherwise.
The respondent obtained a further property (seizure and sale) order for the same Como property on 8 May 2013 in respect of the same judgment debt the costs of the failed auction applied to that debt. Accordingly the magistrate correctly made the order pursuant to s 20(3) Civil Judgments Enforcement Act to include the fees of $1,990.90 consistent with the evidence before her.
The appellant argued that s 103 Civil Judgments Enforcement Act applied to the application for costs. I do not accept this. Section 20(3) Civil Judgments Enforcement Act deals with ancillary matters such as costs.
The appellant also referred to the decision of Bank of Western Australia v Connell (1996) 16 WAR 483. Owen J in that case stressed the nature and importance of the Torrens system and the head note stated:
(2)Section 133 of the TLA provides its own registration system to protect those acquiring land from a judgment debtor, which is inconsistent with the registration system under the Judgments Act. Accordingly, a judgment creditor cannot gain an equitable charge over Torrens system land by virtue of the operation of ss 13 and 19 of the Judgments Act.
In this case the registration occurred as a result of s 133 of the Transfer of Land Act not by virtue of the Judgments Act. There is no inconsistency.
The appellant also referred to the decision of Simmonds J in Gannaway v Chin [2011] WASC 252. This was a case dealing with caveats lodged pursuant to s 138 Transfer of Land Act. I do not consider it to be relevant to the issues to be determined in this appeal.
As part of her amended grounds of appeal the appellant also sought costs. The orders sought are:
Orders sort [sic]
The Appellant applies for orders in accordance with s 105(a) and s 105(b) of the Civil Judgments Enforcement Act 2004 (WA). The Appellant seeks the following orders with regard to this matter.
1.Setting aside of the invalidly obtained Seizure and Sale order of the 8th May, 2013.
The payment of money, compensation or damages in the form of:
2.restitutory damages for all legal and other costs arising from the Appellant's efforts to protect her property following the attempt to unlawfully auction her house.
3.exemplary damages to cover
•the Appellant's loss of reputation from the public advertising, the contacting of her neighbours regarding the intended auction and the actual auctioning of her property. The Appellant is a professional person of good standing and has lived in the same neighbourhood for 27 years.
•ongoing anxiety from the stress to which the Appellant has been subjected.
•the loss of opportunity caused to the Appellant in having to attend to, and rectify this matter.
Even if the appellant's appeal had been successful the appeal relates solely to the decision of her Honour Magistrate Hawkins made 31 October 2013. It does not encompass other matters that the appellant may have brought before various jurisdictions at other times.
The appellant sought exemplary damages. The order that the appellant pay the respondent $4,455.37 was made by the State Administrative Tribunal on 9 November 2010 and the appellant still has not complied with this order. Even if the appellant was successful in this appeal (which she is not) her failure to mitigate loss in respect of the judgment debt would make any order for exemplary damages inappropriate.
On 2 July 2014 the respondent submitted that earlier transcripts of Magistrate Hawkins may be relevant to my consideration of this appeal and sought an extension of time in order to provide earlier transcript. On 23 October 2014, the respondent lodged transcript dated 19 September 2013 with the court. On 19 September 2013 Magistrate Hawkins had adjourned the matter to 31 October 2013 when the decision the subject of this appeal was made. The learned magistrate neither heard nor determined the matter on 19 September 2013. The transcript does not raise any matter relevant to this appeal.
For the reasons I have outlined the appeal is dismissed.
0