National Australia Bank Ltd v Bouahom

[2012] QDC 330

[2012] QDC 330

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2945 of 2012

NATIONAL AUSTRALIA BANK LIMITED	Plaintiff
and
LAYVANH BOUAHOM	Defendant

BRISBANE

..DATE 19/10/2012

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 895, r 907

Last minute application by defendant mortgagor for stay of enforcement warrant for possession of residential premises following default judgement - defendant denied service of claim and statement of claim had been effected, also receipt of plaintiff's notice of default and advices of the judgement - court satisfied she knew early of the proceeding - evidence of prejudice to the plaintiff from a stay
HIS HONOUR:  Before the court is an application by the defendant filed only this morning seeking a stay of an enforcement warrant obtained by the plaintiff bank to obtain possession of mortgaged premises, being Unit 21 at 5 Whalley Street, Bargara, Queensland, which is Lot 503.

From the court's point of view the underlying proceeding was an unremarkable example of a claim by a mortgagee seeking recovery of possession of mortgaged property and payment of the full amount secured pursuant to an election to accelerate consequent upon default.

The Registrar entered default judgment on the 5th of September 2012.  An enforcement warrant issued on the 24th of September 2012 and the enforcement officer, who is the bailiff assigned to the court in Bundaberg, on the 5th of October 2012 left at the premises his enforcement officer's notice requiring that the premises be vacated by next Sunday at 4 p.m., failing which early the following morning the defendant would be compelled to move at her own expense.

Her position confirmed in cross-examination upon her affidavit sworn today is that she has received not a single document from the plaintiff bank in respect of its claim - neither the claim and statement of claim nor advice of the default judgment, which I'm satisfied was posted out of an abundance of caution to the same address under three slightly different descriptions which historically have been used.  The defendant also denies that she received the default notice of 23rd April 2012, which of course underlies the bank's entire proceeding.

The plaintiff has, in the ordinary way, caused to be filed an affidavit of the process server who served the claim, according to the relevant affidavit, at 11.29 a.m. on the 27th of July 2012, that's the morning following the issue of the claim out of the Brisbane registry at the court.  Service was at the subject property, Unit 21, 5 Whalley Street.

The affidavit exhibits copies of two shopping dockets, which if they were obtained by the defendant personally in transactions effected by her show a purchase at Paint City, Hervey Bay, 85 Beach Road, Hervey Bay, at 12.07 p.m. on the date of service and another at Dollars and Sense in Childers at 1.46 p.m. according to cash register imprints.

In the usual case the court would be troubled by such material and possibly require a mini trial in respect of the service issue.  The defendant's affidavit indicates that at 11.29 a.m. on the 27th of July she was shopping in Hervey Bay and couldn't have been served.  She suggests that a Chinese lady called Hazel Cumak, who doesn't speak English, was at the premises on the day looking after them.

There is hearsay information placed before the court in Mr Holland's affidavit, which the plaintiff brought here at short notice and filed by leave, that suggests that the process server knew the defendant already from a previous encounter in April this year.  It's not possible to place reliance on that.  What I think the court is entitled to do is act on a firm impression that the account of the defendant of receiving none of the documents at all is incredible, which in an indirect way supports the proposition that the claim was served as deposed to by Ms McGregor.

The defendant has been guilty of a certain amount of delay in that the document of the 5th of October came to her within a couple of days.  Accepting that as a resident of Bargara she may have some difficulties in approaching the court, which she had to do in Brisbane, it's not impressive that the application is made at the last possible moment and it's possible that there was an intention to proceed ex parte.

Alerted to the application’s being filed and the subject of a request for a “special” hearing, I intimated to registry staff that it wouldn't be entertained unless it had been notified to the plaintiff.  There's indeed an endorsement at the foot of the document which indicates an intention to serve the plaintiff's lawyers.

Service there did occur and effecting that service meant the applicant was delayed in returning to court in time for the scheduled 2.30 start, but that's of no moment.

The application may be seen as brought under rule 895, perhaps rule 907.  The annotations in the LexisNexis practice indicate that stays of warrants for possession of property are not to be had simply for the asking.

In Randell v Charter [2003] QCA 180, in particular, Jerrard JA in refusing such a stay noted that the material supporting the application didn't sufficiently identify that the disadvantage to the applicant in execution of the orders outweighed the disadvantage to the respondents in not having their costs paid.

In the present context the defendant has adduced no evidence of prejudice apart from the obvious inconvenience and disruption occasioned by losing one's residence.  The evidence rather suggests that she has easy access to alternative accommodation, which is owned by a community based at a Buddhist temple or temples with which she is associated.

Unusually, there is evidence of prejudice to the plaintiff bank, which is in a financially strong position, the court assumes.  It appears that the body corporate where the property constituting the bank's security is located, being Unit 21, has had considerable trouble in getting its levies paid.  The bank is in receipt of an invoice for nearly $10,000 in that regard.  There's also evidence that come the end of the month the building is likely to be uninsured, so the security is in jeopardy.

The conclusion I reach is that contrary to the defendant's assertion the plaintiff's procedure has been regular and crucially in respect of service of the claim.  One cogent reason for holding some confidence that at the very least it came quickly to the defendant's attention is that within days on the 2nd of August 2012 she made a financial hardship application to the plaintiff seeking variation of the relevant contract, a result that was unsuccessful.

The application filed today by the defendant is dismissed.

I ought to record I am grateful to Ms Martin and also to Mr John Hyland, the Bundaberg bailiff, who is the enforcement officer referred to above, contact was made with him by telephone for the purpose of exploring what inconvenience might result from deferring the steps which his notice foreshadowed for next Monday.  He told Ms Martin privately and later publicly the court that except for one day, being Monday, the 29th of October 2012, he would be available to supervise events on any day before the 19th of November 2012 when he is required for court duties.  Arrangements in respect of removalists and locksmiths and the like he tells the court are made by officers of the plaintiff.

At one stage I had the impression that it might volunteer some time limited stay in circumstances as recounted, but Ms Martin indicated her instructions were to the contrary and, as events turn out, she's been vindicated. 

The application is dismissed.
...

HIS HONOUR:  And dismissed with costs.

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