Hoddinott v Decorative Concrete Services Pty Ltd - [2014] WADC 114

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WADC 114
Decision Date: 30 OCTOBER 2014

CaseChat Overview and Summary

The case of Hoddinott v Decorative Concrete Services Pty Ltd involved a dispute between the appellant, Susan Hoddinott, and the respondent, Decorative Concrete Services Pty Ltd. The respondent had obtained a property (seizure and sale) order under the Civil Judgments Enforcement Act 2004 against the appellant, who failed to satisfy the judgment debt. The respondent subsequently applied for an order to recover the bailiff's fees incurred from a failed auction of the property, which occurred within the six-month period after the registration of the order. The case was heard in the Magistrates Court, where the magistrate ruled in favour of the respondent, ordering the appellant to pay the fees of $1,990.90.

The primary legal issue in this case was whether the magistrate had the authority to order the appellant to pay the bailiff's fees for the failed auction under section 20(3) of the Civil Judgments Enforcement Act 2004. The appellant argued that section 103 of the Act applied and limited the respondent's ability to recover the fees. However, the court held that section 20(3) of the Act, which allows for ancillary and consequential orders, provided the necessary authority to order the fees. The court also noted that the Torrens system, which governs the registration of property interests, has its own registration system that protects those acquiring land from a judgment debtor.

The court dismissed the appellant's argument that section 103 of the Act applied and limited the respondent's ability to recover the fees. The court held that section 20(3) of the Act provided the necessary authority to order the fees, as it allowed for ancillary and consequential orders. The court also noted that the Torrens system has its own registration system that protects those acquiring land from a judgment debtor, which is inconsistent with the registration system under the Judgments Act. The court held that the magistrate correctly made the order pursuant to section 20(3) of the Act, which deals with ancillary matters such as costs.

In conclusion, the court held that the magistrate had the authority to order the appellant to pay the bailiff's fees for the failed auction under section 20(3) of the Civil Judgments Enforcement Act 2004. The court rejected the appellant's argument that section 103 of the Act applied and limited the respondent's ability to recover the fees. The court held that the magistrate correctly made the order pursuant to section 20(3) of the Act, which allows for ancillary and consequential orders. The court also noted that the Torrens system has its own registration system that protects those acquiring land from a judgment debtor, which is inconsistent with the registration system under the Judgments Act. The final order of the court was that the appellant was to pay the respondent the sum of $1,990.90, being the fees for the failed auction.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.