Perpetual Trustees Victoria Limited v. James

[2008] QSC 19

SUPREME COURT OF QUEENSLAND

CITATION:

Perpetual Trustees Victoria Limited v James [2008] QSC 19

PARTIES:

PERPETUAL TRUSTEES VICTORIA LIMITED (ACN 004 027 258)
(respondent/plaintiff)
v
TONY JAMES
(applicant/defendant)

FILE NO:

BS5727 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX TEMPORE ON:

25 January 2008

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

25 January 2008

JUDGE:

Wilson J

ORDER:

1. Application dismissed.

2. That the applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – IN GENERAL – OTHER MATTERS – the respondent plaintiff obtained default judgment against the applicant defendant – the judgment provided that the plaintiff recover possession of certain land – an enforcement warrant issued – whether to grant a stay of the enforcement warrant

COUNSEL:

S Velik (solicitor) for the applicant defendant
D Kelly for the respondent plaintiff

SOLICITORS:

Velik Solicitors for the applicant defendant
Thynne & Macartney for the respondent plaintiff

1. Wilson J:  This is an application for a stay of an enforcement warrant, issued on 26 November 2007, in relation to property described as lot 332 and 333 on RP26015 in the county of Stanley Parish of Kedron, title reference 12517106.

1. On 13 September 2007 the respondent plaintiff, Perpetual Trustees Victoria Limited, obtained a judgment against the defendant, the present applicant, Tony James, in the sum of $525,281.82, including $14,637.84 interest to the date of judgment and $1,781.30 costs.

1. The judgment also went on to provide that the plaintiff, Perpetual Trustees, recover against the defendant, Tony James, possession of the land.  An enforcement warrant was subsequently issued on 26 November 2007.  The applicant has received notification from the chief bailiff and enforcement officer to vacate the premises no later than today, 25 January 2008, and in default that he will be compelled to move at his own expense on Saturday 26 January 2008.

1. The property is in McIlwraith Street, Everton Park.  The applicant’s house is situated on the land and there are three detached garages adjoining the house.  He resides in the house with his wife and his two sons, aged nine and six years.  He has deposed that if he and his family are forced to vacate the land pursuant to the enforcement warrant it will likely be destructive of his marriage and of his family.

1. It has not been suggested that there was anything wrong with the way judgment was entered or with the way the enforcement warrant was issued.  The application appeals to the exercise of my discretion to grant a stay in what I might consider to be an appropriate case.

1. The evidence before me shows that over a period of two years the interest which accrued was more than $113,000 but the payments that were made were only about $60,000.  The applicant is now offering to “maintain the status quo”, by which I understand him to mean that he will pay interest as it accrues and that he will also reduce the existing indebtedness by $5,000 per month.

1. He is hoping to refinance the property and he has a conditional offer of refinance.  It is conditional in part on a satisfactory valuation being obtained.  Such valuation is not to hand yet although he deposes to having received oral advice from a valuer that it will be in the sum of $650,000.

1. When pressed, his solicitor indicated that the length of the stay being sought was one month.  One cannot help but feel sympathy for a family which may have to vacate the family home pursuant to the execution of an enforcement warrant, but sympathy is not what must guide the exercise of my discretion in a case such as this.

1. The proposal to refinance is, at this stage, not set in concrete. On the other hand, the respondent to the application, Perpetual Trustees Victoria Limited, is entitled to the fruits of its litigation.  Indeed, it will have obligations to its shareholders and beneficiaries with respect to the administration and enforcement of the loan in question.

1. In all the circumstances I am not persuaded that this is an appropriate case in which to grant the stay which has been sought.  The application is dismissed.

1. I order the applicant to pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.