RHG Mortgage Co Ltd Formerly RAMS Mortgage Co Ltd v Hannah

[2011] QDC 144

[2011] QDC 144

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2 of 2011

RHG MORTGAGE CORPORATION LIMITED (ABN 48 065 912 932) FORMERLY RAMS MORTGAGE CORPORATION LIMITED	Plaintiff
and
KEITH ANTHONY HANNAH	Defendant

BRISBANE

..DATE 11/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999, r 50, r 139(1)(b), r 144, r 281, r 283, r 286, r 287, r 371

Defendant filed a notice of intention to defend - should have attached a defence - notice of intention to defend struck out to put plaintiff in a position to seek default judgment from registrar
HIS HONOUR:  The Court makes an order an terms of the initialled draft which is to the effect that the defendant Notice of Intention to Defend filed on the 14th of March 2011 be struck out and that the defendant must pay the plaintiff's costs of and incidental to the application to be assessed if not agreed without prejudice to the plaintiff's entitlements pursuant to loan and mortgage arrangements it has with the defendant.

This is a claim filed in the Hervey Bay registry seeking judgment for a mortgage debt close to $400,000 and recovery of possession of the relevant land.

...

HIS HONOUR:  This is not a special case of the kind referred to in rule 144 of the conditional notice of intention to defend which is not required to have attached to it a defence pursuant to rule 139(1)(b).

The plaintiff is interested in establishing entitlement to seek judgment default under rules 283 and 286 and 287.  I agree with Mr Kelly's understanding that the existence of the notice of intention to defend precludes such an application taking rule 281(1) literally.

The effect of rule 371 is that the plaintiff requires the assistance of a Court to overcome the difficulty which the non-complying notice of intention to defend places in its path.  Without the Court's assistance that notice of intention to defend cannot be treated as a nullity.

The present application is brought under rule 50 as the application is one that would be ordinarily be made in Hervey Bay registry.  There's no Judge available there to hear and decide it this week, although Mr Kelly informs the Court there will be a Judge available next week and perhaps after that.

The bringing of the application in Brisbane is justified on costs grounds.  It would be expensive for the plaintiff to have to send a legal team to Hervey Bay next week.

The Registrar in Brisbane has received a facsimile from the Hervey Bay solicitors who filed the notice of intention to defend which was a useful course to adopt from the point of view of protecting the defendant.  That letter seeks an adjournment of the hearing for one week to "enable our client to submit a proposal for payment to the plaintiff of the full amount of the mortgage debt.  To the best of our knowledge, our client resides in Western Australia."  It was said that the firm's instructions were received only this morning, leaving insufficient time to arrange for anyone to attend the hearing of the application. 

Mr Kelly had informed the Court that those instructing him knew that a week's adjournment was wanted - something the plaintiff is not willing to provide.

There is no suggestion in the letter that a defence might be available.  In my opinion, the Court can safely and ought to proceed to grant the relief which is being sought today.

Judgment is not sought.  No more happens than placing the plaintiff in a position to seek default judgment from the Registrar which will, no doubt, require an appointment to be made and possibly at some time well into the future.

If the plaintiff does obtain a judgment from the Registrar in Hervey Bay then if that occurs quickly it is likely that there'll be a Judge on the spot who could be turned to provide any appropriate indulgence.  This is by no means a sudden death situation and effectively, it seems to me, the defendant will have the "one week" requested to come up with a proposal.  It is unlikely the plaintiff would resort to enforcement measures, assume it has got a judgment, if there is a realistic hope of an acceptable proposal eventuating.

Orders per initialled draft.

-----