Perpetual Ltd v Lee

[2013] QSC 6

SUPREME COURT OF QUEENSLAND

CITATION:

Perpetual Ltd v Lee [2013] QSC 6

PARTIES:

PERPETUAL LIMITED

(applicant)

v

LEE

(respondent)

FILE NO/S:

BS3339/12

DIVISION:

Trial

PROCEEDING:

A matter for determination on the papers without an oral hearing

DELIVERED ON:

29 January 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Peter Lyons J

ORDER:

The application is dismissed.  1.       

I direct that any further application for the issue of an enforcement warrant in this matter be made by way of an application to be heard orally.2.       

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – PRACTICE – APPLICATION AND TIME OF ISSUE – where plaintiff obtained default judgment against the defendant– where plaintiff seeks leave on the papers for the issue of an enforcement warrant against any occupants of the land – where person against whom order was made is not the occupant of the land – where application did not attach a copy of the enforcement warrant being sought –whether leave should be granted for the issue of an enforcement warrant against any occupants of the land

Uniform Civil Procedure Rules 1999 (Qld) r 906, r 913, r 915

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

R v Wandsworth County Court, ex parte Wandsworth London Borough Council [1975] 1 WLR 1314

SOLICITORS:

HWL Ebsworth Lawyers for the Plaintiff

1. Peter Lyons J: The plaintiff has obtained judgment in default or defence for the recovery from the first defendant of land located at 294/6 View Avenue, Surfers Paradise (land). It now seeks leave under r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for the issue of an enforcement warrant against any occupants of the land, and for the issue of the warrant; as well as for costs. The plaintiff has applied for the orders by an application for a decision on the papers, without an oral hearing. 

Background

1. The plaintiff brought its action as a mortgagee over the land.  The first defendant is the registered proprietor of the land. 

1. On about 12 November 2012, the solicitors for the plaintiff sent a letter addressed to “The Occupant” of the land, enclosing a Form 19 Notice under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRAA”).  The notice required that the premises be vacated by 16 January 2013.

Difficulties with the application

1. Rule 906(1) requires that an enforcement warrant to enforce an order must be attached to the filed application for the warrant. Rule 906(3) requires the filing of a copy of the enforcement warrant. There is no attachment to the application; nor has a copy of the enforcement warrant been filed. The submissions made on behalf of the plaintiff do not address r 906(1) and r 906(3).

1. It is apparent from the application that the plaintiff seeks the issue of an enforcement warrant against any occupant of the land.  There is authority for the proposition that the warrant sought by the plaintiff would require the eviction of any occupant of the land, whether or not that person was a party to the action[1]. 

   [1]R v Wandsworth County Court, ex parte Wandsworth London Borough Council [1975] 1 WLR 1314.

1. Further, s 317 of the RTRAA prevents the applicant from seeking to enforce the order for possession, if the land is residential premises for the purposes of that Act, and a Residential Tenancy Agreement has been entered into for the land.  The letter from the plaintiff’s solicitors addressed to the occupant of the land on 12 November 2012 rather strongly suggests that the land is residential premises.  There is, however, no satisfactory evidence about whether the land is currently occupied, and if so, whether that is pursuant to a Residential Tenancy Agreement.

1. The material includes information obtained by a paralegal employee of the plaintiff’s solicitors, from a person said to have access to the financial records of the plaintiff that to the best of that person’s knowledge, it cannot be ascertained if tenants still reside at the property.  In my view, that evidence is quite unsatisfactory for the purpose of considering whether the premises is currently occupied, and if so, whether that is, or might be, pursuant to a Residential Tenancy Agreement.

1. Rule 913(1) provides that an order for the possession of land may be enforced by an enforcement warrant, only if the person against whom the order is to be enforced is served with a copy of the order at least seven days before the warrant is issued. It is clear that one person against whom the plaintiff seeks to enforce the order is the first defendant. It relies for proof of satisfaction of the requirement found in r 913(1), on a letter sent on about 12 November 2012, addressed to the first defendant at Unit 10/12 Commodore Drive, Paradise Waters. Neither the evidence nor the submissions made on behalf of the plaintiff are directed to establishing that this is effective service of the order. In my view, the plaintiff fails to establish that it has complied with the requirement of r 913(1).

1. In the preparation and presentation of this application, insufficient attention has been paid to addressing the requirements of the UCPR.  I propose to direct that any further application in relation to the issuing of an enforcement warrant in this action be made orally.

Conclusion

1. The application is dismissed.  I direct that any further application for the issue of an enforcement warrant in this matter be made by way of an application to be heard orally.