Permanent Custodians Ltd v Templin

[2023] ACTSC 280

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Permanent Custodians Ltd v Templin

Citation: 

[2023] ACTSC 280

Hearing Date: 

10 October 2023

Decision Date: 

10 October 2023

Before:

McCallum CJ

Decision: 

(1)    The order for delivery of possession of the land [redacted] made on 7 September 2023 is set aside.

(2)    The enforcement proceedings are stayed until 3 November 2023. 

(3)    Ms Templin serve these orders together with a copy of the application and the affidavits in support by close of business on 11 October 2023.

(4)    Permanent Custodians pay Ms Templin’s costs of the application on the understanding that those costs and the expenses for obtaining the order for delivery of the land on 7 September 2023 should not be debited to her loan account with Permanent Custodians.

(5)    List the matter for directions on 3 November 2023 at 9:30am before McCallum CJ. 

Catchwords: 

CIVIL LAW – APPLICATION – Application to set aside order for delivery of possession of land – where enforcement notice not served on the enforcement debtor

Legislation Cited: 

Court Procedures Rules 2006 (ACT) rr 2015(2), 2440, 2446, 2451

Parties: 

Permanent Custodians Limited ( Plaintiff)

Suzanne Lea Templin ( Defendant)

Representation: 

Counsel

S Marquez Musso ( Defendant)

Solicitors

Maxwell & Co Barristers and Solicitors ( Defendant)

File Number:

SC 21 of 2023

McCALLUM CJ:       

1․These proceedings are brought by Permanent Custodians Limited to enforce a debt owed by Ms Suzanne Templin which is secured by a mortgage over the property which is home to her and her two children. 

2․The proceedings were commenced by originating claim filed on 19 January 2023.  Default judgment was obtained on 17 May 2023 and included judgment in the sum of $628,457.69 together with interest in the order of $12,000 as well as an order for possession of the land the subject of the mortgage. 

3․On 7 September 2023, Permanent Custodians sought an order for delivery of possession of the land.  That application was supported by the affidavit of Daniel Jarjoura sworn on 16 August 2023.  It will be necessary to return to the terms of that affidavit.

4․By application in proceeding filed 10 October 2023, which has come before me on an urgent ex parte basis as duty judge, Ms Templin seeks the following orders:

1.     The notice to vacate of this court issued on 11 September 2023 in relation to the land [redacted] is stayed until further order of the court;

2.     The enforcement proceedings in SC 21 of 2023 are stayed until further order of this court.

5․The application is supported by two affidavits sworn by Ms Templin, one directed to the general matter of the circumstances in which she became aware of the order for delivery of possession and one addressing a separate matter, being the circumstances in which, as she understood the position, she reached a settlement agreement with Permanent Custodians.  The application is also supported by the affidavit of Ms Templin’s solicitor, Mr Marquez Musso.

6․Mr Marquez Musso has argued two grounds on which he submits the notice to vacate should be stayed.  The first relates to the failure of Permanent Custodians to comply with the rules that apply in obtaining an order for enforcement of an order for possession.  The second relates to the settlement agreement. 

7․I have concluded that the first ground is made good and that, in the circumstances, the order for delivery of possession of the land must be set aside.  My reasons for that conclusion are as follows.

8․As already noted, the order for possession was obtained by default. There has been no application to have the default judgment set aside. However, for good reason, the enforcement of an order for possession of land is closely regulated by the Court Procedures Rules 2006 (ACT). Rule 2440 provides that an order for possession of land may be enforced, among other things, by an order for delivery of possession of land. That is an order which in other jurisdictions would be known as a writ of possession.

9․Rule 2440(2) provides that the enforcement of an order for possession by an order for delivery of possession of land is subject to r 2446. That rule provides that an order for possession may be enforced by an order for detention of property only if the person against whom the original order is to be enforced is served personally with a sealed copy of the original order. The original order in this context is the order for possession, which was order (c) in the default judgment entered in May to which I have referred.

10․It is necessary then to return to the affidavit of Mr Jarjoura.  He states at paragraph three, “[t]he default judgment dated 17 May 2023 and entered 18 May 2023 (Original Order) was served on the enforcement debtor by post on 30 May 2023”. That is the first departure from the requirements of the rules.  It is not suggested by Permanent Custodians that the original order, being the order for possession of land, was at any time served personally on Ms Templin. 

11․Separately, in the division of the rules dealing with “[e]nforcement of non-money orders–orders for delivery of possession of land”, r 2451 provides that an order for delivery of possession of land must be supported by an affidavit stating, among other things, “the date a sealed copy of the original order and the notice in accordance with r 2015(2) was served on the enforcement debtor or other person liable to comply with the order”.

12․Having regard to the terms of r 2446, the reference to service in r 2451 must be taken to mean personal service. The reference to r 2015 is a reference to a rule which provides that:

(1)Before an enforcement proceeding can be started for an enforceable money order or non-money order of the court, a sealed copy of the order and a notice in accordance with subrule (2) must be served on the enforcement debtor... 

13․The notice required by subrule (2) must include the following:

(a)details of the order, including whether it was obtained by default;

(b)a summary of the enforcement options available to the enforcement creditor or other person entitled to enforce the order;

(c)a summary of the options available to the enforcement debtor or other person liable to comply with the order, including—

(i)   if the order was obtained by default—that application can be made to set the order aside; and

(ii)     for a money order—that application can be made for an instalment order;

(d)information about where the enforcement debtor or other person liable to comply with the order may be able to obtain legal or financial advice and assistance in relation to the order.

14․The provision of that notice is important.  It provides information to a debtor, who will often be a person who is about to be evicted from their home, to enable them to pursue options for some alternative remedy so as to avoid the most draconian remedy of being evicted.

15․There is nothing in Mr Jarjoura’s affidavit to indicate that any such notice was served.  That is the second respect in which Permanent Custodians has failed to comply with the rules.  Having regard to the importance of those requirements, an order for delivery of possession of land obtained in breach of those requirements should ordinarily be set aside on the application of the enforcement debtor.  That is the application made here.  Furthermore, it is clear from the correspondence concerning the settlement agreement that there is good reason to set the order aside even leaving aside the lender’s failure to comply with the requirements of the Rules.

16․I turn then to the second ground relied upon by Mr Marquez Musso, which is the debtor’s understanding that she had reached an agreement with the lender.  It is clear from the evidence that there may be a factual contest about that.  Ms Templin made a phone call during which she expressed her desire to take up an offer that had previously been made to allow her to capitalise arrears on the loan.  The person to whom she spoke, who on Ms Templin’s account represented themselves to be authorised to speak on behalf of the lender, proceeded to outline what she would have to do in order to take up that offer.  That included making payment of the sum of $4,900 on 22 September 2023 and on the 22nd of the following two months. 

17․According to Ms Templin’s affidavit, the person speaking on behalf of the lender said, “[y]ou cannot miss it.  Would you like to do direct debit?”.  Ms Templin agreed and in due course the sum of $4,900 was debited from her account on 22 September 2023.  In the meantime, she was approached by Permanent Custodians and told that she would have to pay the full amount.

18․Ms Templin has filed a complaint with AFCA about Permanent Custodians’ conduct.  The position expressed by Permanent Custodians in the correspondence is that the conversation Ms Templin had was expressed to be subject to approval.  Nothing in her affidavit suggests that she understood that to be the case but, in any event, the fact of deduction of the $4,900 and the making of an arrangement for direct debit on the spot would at least arguably create an estoppel which would result in the settlement in effect tying the hand of the lender at this stage.

19․I say nothing further about that because that may be a matter for future litigation.  In the meantime, what is plain is that the order for delivery of the land must be set aside.  The proceedings should, however, be made returnable in the near future, since this application has been made ex parte.

20․Mr Marquez Musso has very fairly indicated that, as the present application has been made ex parte, he would not at this point seek an order for his costs.  However, the matters that have been ascertained during the course of argument of the application, namely, that the lender has obtained an order for delivery of possession of land without complying with the requirements of the rules of Court, cause me to think that an order should be made that Permanent Custodians pay Ms Templin’s costs of today’s application on the understanding that those costs may not be debited to her loan account, as often occurs in enforcement proceedings of this kind.

Orders

21․For those reasons the orders I make are:

(1)The order for delivery of possession of the land [redacted] made on 7 September 2023 is set aside.

(2)The enforcement proceedings are stayed until 3 November 2023. 

(3)Ms Templin serve these orders together with a copy of the application and the affidavits in support by close of business on 11 October 2023.

(4)Permanent Custodians pay Ms Templin’s costs of the application on the understanding that those costs and the expenses for obtaining the order for delivery of the land on 7 September 2023 should not be debited to her loan account with Permanent Custodians.

(5)List the matter for directions on 3 November 2023 at 9:30am before McCallum CJ.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Chief Justice McCallum

Associate:

Date: 4 December 2023