Oak Wholesale Fund Pty Ltd v Sasha & Sons Holding Pty Ltd
[2022] QSC 89
•17 May 2022
SUPREME COURT OF QUEENSLAND
CITATION:
OAK Wholesale Fund Pty Ltd v Sasha & Sons Holding Pty Ltd [2022] QSC 89
PARTIES:
OAK WHOLESALE FUND PTY LTD
(ACN 622 106 692)(plaintiff/applicant)
v
SASHA & SONS HOLDING PTY LTD
(ACN 647 566 292) in its own right and in its capacity as trustee for the Mladenovic Zaric Family Trust (ABN 49 843 787 537)(defendant/respondent)
FILE NO:
1640 of 2022
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
17 May 2022
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Flanagan J
ORDER:
The plaintiff recover from the defendant possession of the land described as being the whole of the land comprised in Certificate of Title, Lot 9 on Survey Plan 128677, Title Reference 50301313.
SOLICITORS:
ERA Legal for the applicant
On 9 February 2022 the plaintiff filed a claim seeking:
1.judgment for possession of the real property situated at unit 9, 47 Musgrave Road, Cooper Plains Qld 4108, being the whole of the land comprised in Certificate of Title Lot 9 of Survey Plan 128677, Title Reference 50301313 (the property);
2.leave to issue a Writ of Possession to enforce the judgment in paragraph 1;
3.costs; and
4.such other orders as the Court so determines.
The statement of claim relevantly pleads that the defendant entered into a loan deed with the plaintiff for a sum of $187,298. As security for its obligations under the loan deed the defendant mortgaged to the plaintiff all its rights, title and interest to the property. There is a mistake in both the claim and statement of claim in relation to the property’s address in that reference is made to Cooper Plains rather than Coopers Plains. The real property description, however, is correct.
The defendant has defaulted under the loan deed by failing to make payments of interest and fees owing since 23 October 2021. This constitutes an “Event of Default” under the mortgage. The statement of claim pleads as an express term of the mortgage that, upon the occurrence of an Event of Default:
(a)the plaintiff is entitled to serve a notice on the defendant to remedy a monetary default within one month;
(b)if the Event of Default is not remedied, the plaintiff is entitled to relevantly enter into possession of the property and exercise any or all rights, remedies or powers conferred upon the plaintiff by the mortgage.
The claim and statement of claim were served by prepaid Express Post envelope posted on 17 February 2022.
No notice of intention to defend was filed by the defendant. On 24 March 2022 the plaintiff filed a request for default judgment. That request was refused by the Registrar (Applications) on 30 March 2022 on a number of bases. First, service on the defendant had not been proved. When serving a company pursuant to s 109X(1)(a) of the Corporations Act 2001 (Cth), the ASIC Current Organisation Extract evidencing the company’s registered office must be exhibited to the affidavit of service and dated the day of service of the claim and statement of claim or be able to confirm the company’s registered office as at the date of service.
Secondly, paragraph 3 of the request for default judgment stated: “the claim is for the recovery of possession of land only, and the plaintiff’s claim is for delivery of possession under a mortgage”. The Registrar only has the authority to issue default judgment in relation to claims for relief mentioned in rules 283 to 286 of the Uniform Civil Procedure Rules 1999 (UCPR), and no other claim: rule 287 UCPR. Paragraph 3 of the request for default judgment referred to a claim for delivery of possession under a mortgage. By rule 286(4) of the UCPR, which deals with judgment by default for recovery of possession of land, a plaintiff is not entitled to judgment if the plaintiff’s claim is for delivery of possession under a mortgage. The Registrar also identified that the correct spelling of the suburb of the property is Coopers Plains not Cooper Plains as appears in the claim and statement of claim and the proposed default judgment.
Following the refusal of default judgment, the plaintiff filed a further request for default judgment on 13 April 2022. The defect in proof of service of the defendant was corrected by the filing of an affidavit of Charles Bruton, which annexed the relevant ASIC Current Organisation Extract. The request for default judgment made a claim for recovery of possession of land only and the plaintiff abandoned the claim for delivery of possession under the mortgage. No application had been made, however, by the plaintiff to amend either the claim or statement of claim which sought judgment for possession, as well as leave to issue a writ of possession to enforce any judgment for possession.
The Registrar refused the request for default judgment on the basis that other claims, apart from the claim for recovery of possession of land, had been made which resulted in the application of rule 288 of the UCPR. Rule 288 applies if a defendant is in default and the plaintiff is not entitled to apply for judgment under rules 283 to 286. In such circumstances rule 288(2) provides that the plaintiff may apply to the Court for a judgment. On such application rule 288(3) provides that the Court may give the judgment it considers is justified on the pleadings even if the judgment was not claimed.
On 4 May 2022 the plaintiff applied to the Court for the following orders:
1.pursuant to rule 982(2) of the UCPR the matter be referred to a judge;
2.the application be decided without an oral hearing;
3.judgment for possession of the property;
4.pursuant to rule 915 of the UCPR, the issue of an enforcement warrant in the approved form authorising an enforcement officer to enter the property and deliver possession of the land to the plaintiff.
One of the affidavits filed in support of the application was of Daren Anderson, the solicitor for the plaintiff in the proceedings. Mr Anderson identified the reference in the claim and statement of claim to Cooper Plains rather than Coopers Plains was a typographical error, noting that the title particulars on both the claim and the statement of claim are correct.
As to the relief sought in paragraph 1 of the application filed 4 May 2022, it is unnecessary to make any order pursuant to rule 982(2) that the matter be referred to a judge. This is because the plaintiff has applied for default judgment to the Court.
The relief sought pursuant to rule 915 in paragraph 4 of the application cannot be granted. Rule 915 provides that a court may issue an enforcement warrant in the approved form authorising an enforcement officer to enter on the land described in the warrant and deliver possession of the land and appurtenances to the person entitled to possession. Rule 914(1), however, provides that a person applying for an enforcement warrant under rule 915 must file – (a) an affidavit by the person stating whether to the best of the person’s knowledge a person other than the person liable under the order is in occupation of the land under a lease or tenancy agreement; and (b) an affidavit about compliance with rule 913.
Rule 913 provides:
“(1)Unless the court otherwise orders, an order for the possession of land may be enforced by an enforcement warrant under rule 915 only if the person against whom the order is to be enforced is served with a copy of the order at least 7 days before the warrant is issued.
(2)If a person other than the person against whom the order is made is in occupation of land under a lease or tenancy agreement, an enforcement warrant under rule 915 may be issued only if the court gives leave.”
There is no evidence on the material that the plaintiff has complied with the requirements of rule 914.
As to the claim for possession, I am satisfied that the typographical error in the spelling of Coopers Plains does not affect the plaintiff’s entitlement to default judgment for recovery of possession of land. The evidence demonstrates that this was a typographical error and, more importantly, both the claim and statement of claim correctly identifies the real property description. The draft order provided is in terms of “possession be granted to the plaintiff for the real property”. This is not the usual wording for an order for recovery of possession of land. The usual form of the order is in terms of the plaintiff recovering from the defendant possession of the described land. This is the only order the Court should make.
I order that the plaintiff recover from the defendant possession of the land described as being the whole of the land comprised in Certificate of Title, Lot 9 on Survey Plan 128677, Title Reference 50301313.
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