Perpetual Corporate Trust Limited v Xu

[2024] QDC 46

DISTRICT COURT OF QUEENSLAND

CITATION:

Perpetual Corporate Trust Limited v Xu [2024] QDC 46

PARTIES:

PERPETUAL CORPORATE TRUST LIMITED
ACN 000 341 533
(plaintiff)
v
LAN ZU XU

(defendant)

FILE NO:

362 of 2023

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

4 April 2024 (on the papers)

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2024

JUDGES:

Andreatidis KC DCJ

ORDER:

1. Leave be given to the plaintiff pursuant to r 913 of the Uniform Civil Procedure Rules 1999 (Qld) for the issue of an enforcement warrant to enforce the order for possession of land described as Lot 80911 on Survey Plan 270663 Title Reference 51094401.

2.   The plaintiff’s application for the issue of an enforcement warrant to enforce the order for possession be otherwise referred to the Registrar in accordance with r 906(4) of the Uniform Civil Procedure Rules 1999 (Qld).

3.   The defendant pay the plaintiff’s costs.

CATCHWORDS:

LEAVE FOR ISSUE OF AN ENFORCEMENT WARRANT TO ENFORCE ORDER FOR POSSESSION

Uniform Civil Procedure Rules 1999 (Qld), rr 906, 908, 913, 914 and 915

Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 317

SOLICITORS:

Gadens Lawyers for the plaintiff

No appearance for the defendant

1. On 20 September 2023 the plaintiff obtained default judgment against the defendant which included an order that the plaintiff recover possession of land described as Lot 80911 on Survey Plan 270663, Title Reference 51094401, being land situated at Unit 911, 36 King Street (also known as Unit 80911, 41 Costin Street and Unit 80911, 36 King Street), Bowen Hills in the State of Queensland.

2. The defendant became the registered owner of the property on 2 March 2018.  The plaintiff became the registered mortgagee on the property on the same date.

3. On or about 16 May 2023, the solicitors for the plaintiff issued a notice to vacate to the tenants of the property. The covering letter sending the notice to vacate stated that the plaintiff was entitled to possession and that it was the mortgagee and that pursuant to s 317 of the Residential Tenancy and Rooming Accommodation Act it had not consented to the tenants occupying the property.  The notice required the tenants to vacate the property by 24 July 2023.

4. On 26 July 2023, the solicitors for the plaintiff wrote again to the tenants noting their instructions that the tenants had failed to comply with the earlier notice and continued to occupy the property.  By that letter an extension was given to the tenants to vacate by 25 August 2023.

5. On 25 September 2023, the solicitors for the plaintiff served on the defendant a copy of the judgment and demanded that vacant possession be provided or payment of the judgment amount be made within seven days.

6. Pursuant to r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), leave of the court is required for the issue of an enforcement warrant under r 915 (being an enforcement warrant authorising entry onto land, and deliver possession of the land to the persons entitled to its possession) if a person other than the person against whom the order for possession of land has been made is in occupation of it under a lease or tenancy. The evidence suggests that the property is occupied by persons other than the defendant. It is therefore appropriate to proceed on the basis that leave is required.

7. Under r 913(1), an order for possession of land may be enforced only if the person against whom the order is to be enforced is served with a copy of the order at least seven (7) days before it is issued. In respect of the defendant, that is satisfied because a copy of the order was served on 25 September 2023.

8. On 16 March 2024, the tenants were served with the application that is before the court, together with the supporting affidavits.  The supporting affidavits included an affidavit of Matthew James Shackleton of 23 February 2024.  That affidavit includes in its exhibits a copy of the order.  According to the affidavit of service the tenants were served with that material on 16 March 2024 which is more than seven (7) days before the warrant is issued.

9. Section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) applies to residential premises which are subject to a mortgage if, after the premises become subject to the mortgage, a residential tenancy agreement was entered into for the premises, and the mortgagee did not consent to the tenancy, and the mortgagee has become entitled to possession of the property. In this regard, I am satisfied of those pre-conditions.

10. There is no direct evidence of a tenancy agreement.  It seems likely that the tenants occupy the property because of an agreement with the defendant (whether it is oral or in writing).  It is also likely that the tenants entered into any such agreement after the granting of the mortgage.  I infer that from the fact that the mortgage was registered on the same day as the defendant became the registered owner of the property.

11. Section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) prevents a mortgagee from obtaining possession of premises to which the section applies unless at least two months before obtaining possession, the mortgagee gives the tenant notice in the approved form informing the tenant that possession is to be obtained. If the section applies, it has been complied with.

12. The procedure for applying for an enforcement warrant is set out in r 906 of the UCPR. It requires the filing of an application and supporting affidavit and may be made without notice to another party. Under r 906(4), such an application must be dealt with by the Registrar without a formal hearing unless the court or a registrar directs otherwise. Rule 908 identifies matters that must appear in the enforcement warrant, and provides that the Registrar must give the enforcement warrant to an officer to be enforced. If leave were to be granted, no reason has been identified why the question of the issue of a warrant should not be dealt with by the Registrar, in accordance with the UCPR.

13. The plaintiff also seeks a costs order against the tenants of the property.  The tenants of the property are not a party to the proceeding.  They were named as respondents to this application.  The submissions do not identify any legislation, court rules or authorities that permit a cost order to be made against a non-party to a proceeding.  The right to make the non-parties respondents to the application has similarly not been identified in the submissions.   In those circumstances, I am not prepared to order costs against the tenants. 

14. The plaintiff also seeks its costs on an indemnity basis against the defendant.

15. In support of that application for indemnity costs, the plaintiff points to the defendant being uncooperative by failing or refusing to vacate the property or taking steps to deliver up vacant possession.  It is also submitted that the defendant has delayed the plaintiff in enforcing its rights.

16. Even accepting those assertions, they do not in my judgment amount to a sufficient special feature to depart from the ordinary order that costs be a standard basis.

17. The orders I make are:

    1.Leave be given to the plaintiff pursuant to r 913 of the Uniform Civil Procedure Rules 1999 (Qld) for the issue of an enforcement warrant to enforce the order for possession of land described as Lot 80911 on Survey Plan 270663 Title Reference 51094401.

    2.The plaintiff’s application for the issue of an enforcement warrant to enforce the order for possession be otherwise referred to the Registrar in accordance with r 906(4) of the Uniform Civil Procedure Rules 1999 (Qld).

    3.The defendant pay the plaintiff’s costs.