Holcim (Australia) Pty Ltd v Silverten Constructions Pty Ltd
[2013] QSC 120
•8 May 2013
SUPREME COURT OF QUEENSLAND
CITATION:
Holcim (Australia) Pty Ltd v Silverten Constructions Pty Ltd & Anor [2013] QSC 120
PARTIES:
HOLCIM (AUSTRALIA) PTY LTD FORMERLY KNOWN AS CEMEX AUSTRALIA PTY LIMITED
ACN 099 732 297
(plaintiff)
v
SILVERTEN CONSTRUCTIONS PTY LTD
ACN 128 470 217
(first defendant)
and
WALTER ENNO THEODORE SILVERTEN
(second defendant)FILE NO:
BS 9486 of 2012
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
8 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Applegarth J
ORDER:
The application is adjourned to a date to be fixed
SOLICITORS:
Forbes Dowling Lawyers for the applicant/plaintiff
This is an application seeking orders that default judgment be entered against the first and second defendants pursuant to r 288 of the Uniform Civil Procedure Rules 1999 (“UCPR”), for the sum of $14,098.55, for declarations that charges or equitable mortgages exist in respect of property owned by the second defendant, and for sale orders in respect of the property.
The plaintiff submits that this application may be heard and decided on the papers pursuant to r 489 of the UCPR.
By its application, the plaintiff seeks the following orders against the first and second defendants:
“1.That Judgment be entered against the First and/or Second Defendants in the sum of $14,098.65.
2.That the First and/or Second Defendants pay damages equal to the Plaintiff’s costs on a full indemnity basis pursuant to the Credit Agreement and/or Guarantee in the sum of $4,159.24 or, in the alternative, the First and/or Second Defendants pay the Plaintiff’s costs on a full indemnity basis to be agreed, or failing agreement, to be assessed, or, in the further alternative, the First and/or Second Defendants pay the Plaintiff’s costs on the standard basis to be agreed, of failing agreement, to be assessed.
3.That the First and/or Second Defendants pay default interest in the sum of $730.03.
The Plaintiff seeks the following orders against the Second Defendant:
4.A declaration that, pursuant to clause 2 of the Guarantee, the Second Defendant granted a charge and/or equitable mortgage to the Plaintiff in respect of the Second Defendant’s interest in the following property Lot 37 Survey Plan 108089, County of Nares, Parish of Tinaroo, Certificate of Title Reference 50248874. (“the Second Defendant’s Property”).
5.A declaration that the charges and/or equitable mortgages over the Second Defendant’s Property charge the interest of the Second Defendant in the Second Defendant’s Property with the payment of:
(a)The sum of $14,098.65; and
(b)The Plaintiff’s legal costs on a full indemnity basis (or, in the alternative, the Plaintiff’s costs on the standard basis); and
(c)Default interest on the sum of $14,098.65.
6.An order for the sale of the Second Defendant’s Property without prejudice to any encumbrance having priority over the Plaintiff’s charges and/or equitable mortgages and free from the encumbrances (if any) of such of the encumbrancees as shall consent to the sales and/or do not have priority.
7.An order that the Second Defendant’s property vest in William Roland Robson of Aggs Robson as statutory trustee for sale subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by him upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of rates, taxes, costs of insurance, repairs properly payable out of income and other outgoings referable to the Second Defendant’s Property.
8.That the Trustee is entitled to charge reasonable expenses for his time in conducting the sale of the Second Defendant’s Property and those expenses are deemed to be part of the costs of the sale of the Second Defendant’s Property.
9.That the Trustee is entitled to deduct the costs of sale of the Second Defendant’s Property from the proceeds of the sale of the said Property, after payment to any registered mortgagees of all moneys lawfully owed pursuant to any registered mortgage over the Second Defendant’s Property, before making payment to any encumbrancee of the Property for such amount in and in such order of priority as they are entitled to, before paying the surplus, if any, to the Second Defendant.
10.An order that, upon the Trustee’s expenses and the Judgment debt and any other amount ordered to be paid from the sale of the property being satisfied by the sale of the Second Defendant’s Property (or any of them), any Property not sold, be returned or transferred by the Trustee to the Second Defendant at the Second Defendant’s cost.”
On 10 December 2012 Daubney J adjourned the application to a date to be fixed, and directed that the Registry inform the applicant’s solicitors of the reason for the adjournment, namely the lack of an affidavit of service. An affidavit of service in respect of service upon the first defendant was filed on 26 March 2013 and an affidavit of service in respect of service on the second defendant was filed on 9 April 2013. These relate to service of the claim and statement of claim. The matter was referred to me by the Registry on 7 May 2013.
It is not uncommon for suppliers in the position of the plaintiff to commence proceedings in the Supreme Court seeking judgment for relatively small amounts in respect of the non-payment for goods delivered. This is such a case. The sum claimed of a little over $14,000 including GST is well within the monetary jurisdiction of the Magistrates Court. The apparent justification for commencing such claims in the Supreme Court is the additional relief sought in the form of declarations that the plaintiff is entitled to a charge and/or equitable mortgage over land, vesting orders, the appointment of statutory trustees for sale and other orders. The Magistrates Court lacks jurisdiction to grant such declarations. However, very substantial costs are incurred in prosecuting such proceedings in the Supreme Court and, typically, the plaintiff seeks payment of those costs on an indemnity basis.
In some cases all or part of the debt has been paid by the time the application comes on for hearing, and the issue often then becomes one in relation to costs.
The material filed does not disclose what amount, if any, has been paid by the first defendant or the second defendant in recent times, and therefore, there is insufficient proof of the current state of indebtedness.
If there had been, I may have been inclined in the first instance to enter judgment for the monetary amount and give the defendants a short opportunity to meet that judgment before making further orders at an adjourned hearing in the form of declaratory and other relief. Instead, it may have been appropriate in the circumstances to grant all of the relief sought at one time so as to avoid more than one hearing, but to delay the appointment of statutory trustees for sale with its attendant costs in order to provide the defendants with an opportunity to pay the monetary judgement and costs.
Presently I am not to know the state of indebtedness and therefore it is not possible to enter judgment for a proven amount. The deficiency in proof of the amount presently owed by the first defendant and the second defendant should be addressed. It may be simpler for the application to be disposed of at a short hearing in the Applications List, at which time the plaintiff can argue its case for the granting of all or part of the relief claimed by it. No consent to act by the proposed statutory trustees for sale appears to have been filed.
If the plaintiff wishes to list the matter in the Applications List, then it should do so. The only order which I intend to make is that the application be adjourned to a date to be fixed. I direct that a copy of these reasons be provided to the solicitors for the applicant.
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