Perpetual Trustee Co Ltd v Davies & Williams - [2011] QDC 160

[2011] QDC 160

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1121 of 2011

PERPETUAL TRUSTEE COMPANY LIMITED

Plaintiff

and

TERRENCE GEOFREY DAVIES

and

BETHANY ROYALE WILLIAMS

Defendant

BRISBANE

..DATE 14/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999, r 907

Enforcement of warrant for recovery of possession of residential premises stayed for 2 weeks on assertions defendants would be able to satisfy plaintiff mortgagee's requirements

HIS HONOUR: The order of the Court is that enforcement of the warrant issued on the 20th of June 2011 be stayed until 30 July 2011. I order that the plaintiff's costs of today's application and costs thrown away by reason of the stay be paid by the defendants, such costs to be assessed if not agreed.

The warrant is for entry upon land - apparently, acreage - where the defendants' residence is and delivery of possession of the land to the plaintiff. The warrant contains the customary notice, "You may apply to the Court to set this warrant aside or stay its enforcement at any time,"setting out the effect of rule 907.

Pursuant to that invitation, the defendants, represented by their stepdaughter, Ms Skreblin, approached the Court yesterday seeking relief against the threatened taking of possession of the premises by the Court Bailiff next Saturday. An application in rather irregular form was filed today and an affidavit by the male defendant.

Those documents complain of the behaviour of the person who delivered the warrant which is said to have been assessed as threatening and to have included information that the defendants could not seek legal advice or take legal action, that nothing could be done and contacting Pepper Home Loans to discuss the matter was pointless as nobody could stop the taking of possession.

Mr Reilley, the Bailiff, who is the person referred to, was given the opportunity to respond to those contentions and hotly disputed them. He's an officer of the Court, well known to those who work here. While his manner might have seemed brusque to persons in a vulnerable and difficult situation who did not know him, I accept his statements. In particular, I accept that he gave advice to the defendants, or one of them, that they ought to contact the plaintiff's solicitors from whom he would be seeking advice about what might be done under the warrant. I accept that he pointed out the details of those solicitors as shown in the footer of the warrant document.

Pepper Home Loans manage the relevant loan for the plaintiff. Arrangements went into default and default judgment was granted by the Deputy Registrar on the 19th of May this year for $591,419 and recovery of possession of the property. Whatever the Bailiff might have said and, apparently, the date was the 5th of July 2011, the defendants have not adopted the line of not doing anything but, rather, made the application to the Court, which comes on urgently. Ms Chung from the firm of lawyers representing the plaintiff learned of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QDC 160
Decision Date: 14/07/2011

CaseChat Overview and Summary

The case of Perpetual Trustee Co Ltd v Davies & Williams was heard in the District Court of Queensland. The plaintiff, Perpetual Trustee Co Ltd, sought recovery of possession of residential premises from the defendants, Terrence Geoffrey Davies and Bethany Royale Williams. The dispute arose from a mortgage default, leading to a default judgment for $591,419 and the issuance of a warrant for the recovery of possession. The defendants, represented by their stepdaughter, Ms Skreblin, sought to stay the enforcement of the warrant for two weeks, asserting they could satisfy the plaintiff's requirements during this period.

The central legal issue before the court was whether the enforcement of the warrant should be stayed for two weeks, allowing the defendants to potentially meet the plaintiff's financial demands. The court had to balance the defendants' request for a stay against the plaintiff's immediate interest in recovering possession and the potential for property damage or loss of moveable items. The court also needed to consider the procedural implications of granting such a stay, particularly the potential liability of the Bailiff if the property was left unattended during the delay.

In ruling on the application, the court found that the Bailiff's conduct, although brusque, did not prevent the defendants from seeking legal advice or action. The court accepted that the Bailiff had advised the defendants to contact the plaintiff's solicitors. The judge was swayed by the genuineness of the defendants' predicament and the likelihood of minimal detriment to the plaintiff if the stay was granted. The court granted the stay on the condition that the defendants provide the keys to the property to the plaintiff, thereby ensuring the Bailiff would not be implicated in any issues arising from the property during the stay. The plaintiff, however, declined to accept the condition, preferring an unconditional stay, which the court ultimately granted. The court emphasised the need to protect the Bailiff from potential liabilities and the importance of ensuring the swift handover of possession to the plaintiff once the stay ended.

Orders