Nolan Meats Pty Ltd v Kantarci

[2014] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Nolan Meats Pty Ltd v Kantarci & Anor [2014] QDC 212

PARTIES:

NOLAN MEATS PTY LTD (ACN 096 869 304)

(applicant)

v

BEKIR KANTARCI

(first respondent)

AND

ALICIA CAROLYN MITCHELL

(second respondent)

FILE NO/S:

320/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

12 September 2014 Ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2014

JUDGE:

Samios DCJ

ORDER:

1.          Order as per draft.

CATCHWORDS:

TRUSTS AND TRUSTEES - STATUTORY TRUST FOR SALE - where the applicant sued the first respondent and the first respondent’s company for money due and owing for meat supplied - where the claim by the applicant against the first respondent and the first respondent’s company was pursuant to a guarantee and indemnity signed by the first respondent - where judgment was obtained by the applicant against the first respondent and the first respondent’s company in the Magistrates Court - where the first respondent had not paid the judgment amount to the applicant - whether pursuant to the agreement between the applicant and the first respondent the Court should appoint a statutory trustees for the sale of the respondents’ property

COUNSEL:

The applicant was not represented by Counsel

The first respondent represented himself

The second respondent was not represented by Counsel

SOLICITORS:

James Conomos Lawyers for the applicant

1. HIS HONOUR:   The applicant sued A1 Ottoman Kebabs Proprietary Limited and Bekir Kantarci in the Magistrates Court for money due and owing by the defendant to the plaintiff.  The claim against A1 Ottoman Kebabs Proprietary Limited was for goods supplied to A1 Ottoman Kebabs Proprietary Limited for its business.

1. The claim against Mr Kantarci was pursuant to a guarantee and indemnity whereby Mr Kantarci guaranteed and indemnified the plaintiff against any failure by A1 Ottoman Kebabs Proprietary Limited to perform and observe the terms and conditions of a credit application.

1. Judgment was obtained by the plaintiff against the defendants on 7 January 2014 for the sum of $4160.63 inclusive of $56.42 interest and $1110 in costs.  A demand was then made for payment.  It is clear the money has not been paid, although Mr Kantarci appears here today to represent himself and he has had the assistance of his son.  I have been told by them that they tried to pay what they owed but the plaintiff, I took it, or its solicitors, did not listen or negotiate.

1. The fact remains that, as it is sometimes not appreciated, when there is a debt and it is not paid, it seems to build up, not only through interest but also legal costs.  That seems to have happened here because when the letter of demand was made on 8 January 2014, the demand was for $5969.95, an increase of about $1800.  It has also increased further, I have been told, and I have no reason to doubt that.

1. The plaintiff has now brought an application not only against Mr Kantarci to enforce the judgment and the guarantee and indemnity, but against Alicia Carolyn Mitchell who is a joint owner with Mr Kantarci of a property at 13/45 Park Road, Slacks Creek.  Ms Mitchell has not participated in the proceedings this morning.  Mr Kantarci has no permission to represent her, however there is evidence that she has been served by way of orders for substituted service.

1. What the plaintiff seeks in the application before me is that statutory trustees for sale be appointed to sell the property to recover what is owing to the plaintiff.  Presumably if this appointment is made, as Ms Mitchell is not a debtor, her interest will be protected, however I was told by Mr Kantarci that he has no interest in this property.  He only put himself into the property and helped Ms Mitchell to buy a property because she could not buy one in Australia.

1. Be that as it may, the fact remains there is no affidavit been filed to support the facts given from the bar table, and in any event he is, prima facie, a registered proprietor and the plaintiff is entitled to pursue him.

1. There is no reason that I see for not making the orders sought by the applicant.  There is evidence of the two persons who are available as chartered accountants to be appointed statutory trustees for sale.  I have examined the evidence as closely as I can.  There is no basis that I can see for not making the orders sought.  Therefore, there will be orders made as per the draft initialled by me and left with the papers. Yes.  Anything further, Mr Yam?

1. MR YAM:   No.  Thank you, your Honour.

2. HIS HONOUR:   That’s the end of the proceedings, Mr Kantarci and Emre.  That’s all I can do in this case.

1. MR E. KANTARCI:   So just to clarify, they’re going to go ahead with the pursuing of the property; is that right?

1. HIS HONOUR:   Yes.

1. MR E. KANTARCI:   So from then on – from here what happens now?

1. HIS HONOUR:   Well, the trustees for sale take possession of the property;  they put it up for sale;  and the – if I may say so, the costs just escalate, because they are entitled to their costs for their work and it just gets out of hand, if I may use that expression.  So I don’t know if you can do something to try and stop it, but – you know, in terms of paying the right money – that’s a matter for you.

1. MR E. KANTARCI:   Who do we need to contact?

1. HIS HONOUR:   You’ll have to contact the solicitors.

1. MR E. KANTARCI:   Okay.

1. HIS HONOUR:   Okay.  Thank you.

1. MR E. KANTARCI:   Thank you, your Honour.

2. HIS HONOUR:   Yes.  Thank you.  Good morning.  No need to wait.

1. MR YAM:   Your Honour, can I just confirm that the number – you have numbers ‑ ‑ ‑ 

1. HIS HONOUR:   Yes, I’ve deleted ‑ ‑ ‑ 

1. MR YAM:   13.

1. HIS HONOUR:   ‑ ‑ ‑ 50 and put it as 13.

1. MR YAM:   Thank you, your Honour.

1. HIS HONOUR:   I hope the registry can see that.

1. MR YAM:   Thank you, your Honour.