Quaresmini v Perpetual Trustee Company Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Quaresmini v Perpetual Trustee Company Ltd & Anor [2011] QCA 74

PARTIES:

LAURENCE JOHN QUARESMINI
(appellant)
v
PERPETUAL TRUSTEE COMPANY LIMITED
ACN 000 001 007
(first respondent)
CHALLENGER MANAGED INVESTMENTS LIMITED
ACN 002 835 592
(second respondent)

FILE NO/S:

Appeal No 2766 of 2011
SC No 3666 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

20 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2011

JUDGES:

Fraser and White JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

The appeal is dismissed with costs, including reserved costs, 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 – PRACTICE – SETTING ASIDE WRITS – where the appellant defaulted under mortgages granted to the respondents – where the respondents obtained default judgment and an enforcement warrant for possession of the land – where the appellant rectified arrears of interest on multiple occasions subsequent to the default judgment but fell into default again – where the appellant applied for a stay of the default judgment and an order setting aside the enforcement warrant – where the appellant argued that the rectification of arrears of interest "satisfied", "exhausted" or "spent" the default judgment – where the respondents were contractually entitled to possession and the default judgment had been regularly entered and was not challenged by the appellant – whether the primary judge erred in refusing to stay the default judgment or set aside the enforcement warrant – whether the Court's discretion to stay enforcement of a warrant for possession under r 895 of the Uniform Civil Procedure Rules 1999 (Qld) should be exercised

Uniform Civil Procedure Rules 1999 (Qld), r 830, r 895

Mango Boulevard Pty Ltd v Spencer & Ors[2010] QCA 207, cited

COUNSEL:

A J H Morris QC, with N J Thompson, for the appellant
P D Hay for the respondents

SOLICITORS:

Fernvale Law for the appellant
Norton Rose Australia for the respondents

FRASER JA:  On 21 September 2009 a judgment in default of any notice of intention to defend was entered against the appellant in favour of the respondents that they recover possession of certain land owned by the appellant.  On 30 October 2009 an enforcement warrant issued pursuant to the default judgment directing the enforcement officer to enter upon the land and deliver possession of the land and appurtenances to the respondent Perpetual Trustee Company Limited.  The warrant was renewed for a further 12 months on 1 November 2010.  On 17 March 2011 the appellant applied in the trial division for orders staying the enforcement of the default judgment and setting aside the enforcement warrant.  The respondents cross applied for a declaration that the appellant was not entitled to enter upon…