Showerama v Amtek & Keatley - [1996] QSC 87

IN THE SUPREME COURT
OF QUEENSLAND
No. 1555 of 1996

Brisbane

Before the Hon. Mr Justice Shepherdson

[Showerama v. Amtek & Keatley]

BETWEEN:

SHOWERAMA PRODUCTS PTY LTD
ACN 009 799 848
Plaintiff

AND:

AMTEK PTY LTD
ACN 052 310 102
First Defendant

AND:
  AARON MICHAEL KEATLEY AND
  TRACY LEE KEATLEY
  Second Defendants

JUDGMENT - SHEPHERDSON J.

Judgment delivered 23 May 1996

CATCHWORDS: Equitable charge - Execution of money judgment - Application for sale order under s.99 Property Law Act 1974. Applicant judgment creditor proposes registered liquidator to sell second defendant's equity of redemption in freehold property. Alternate method is to execute money judgment pursuant to the Land Titles Act. Whether application to order sale under s.99 Property Law Act should proceed.

Counsel:Mr Derrington for the plaintiff.

Solicitors:Bain Gasteen for the plaintiff.

Hearing date: 8 May 1996

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No.1555 of 1996

Before the Hon. Mr Justice Shepherdson

[Showerama v. Amtek & Keatley]

BETWEEN:
  SHOWERAMA PRODUCTS PTY LTD
  ACN 009 799 848
  Plaintiff
AND:
  AMTEK PTY LTD
  ACN 052 310 102
  First Defendant

AND:
  AARON MICHAEL KEATLEY AND
  TRACY LEE KEATLEY
  Second Defendants

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 23 May 1996

On 1 May 1996 the abovenamed plaintiff obtained judgment in default of appearance against the abovenamed first defendant in the sum of $120,273-84 for claim and $8,734-90 for interest.
By a notice of motion filed on 10 April 1996 the plaintiff sought the following orders:-

That it have judgment against the second defendants in the sum of $120,273-84 for claim together with interest under the Common Law Practice Act of 1867.
That land described as lot 152 on RP 226002 County of Ward, Parish of Boyd be sold.
Ancillary to that sought in para. 2 as follows:-
(a)That the land be vested in Bradley Vincent Hellen registered liquidator of Calabro Partners of Brisbane pursuant to the provisions of the Trusts Act or pursuant to the provisions of the Property Law Act.
(b)That the land be sold by public auction within a period of 6 months from the date of the Court Order at a price not less than the reserve price set by the Court.
That the proceeds of sale be disposed of by the person appointed to sell by:-
(a)discharging all costs, charges and expenses properly incurred in the sale of the land, including the costs of the person appointed for the sale.
(b)paying to any prior registered mortgagee or to any holder of a prior charge over the land the amount due to such persons.
(c)discharging the amount secured by the plaintiff's charge together with interest and costs, and any other money due under the charge.
(d)discharging any subsequent mortgages or encumbrances.
(e)paying the residue if any, to the person entitled to receive or the person entitled to give a receipt for the proceeds of the charged property.
(The underlining is mine.)
The notice of motion also sought an order that the second defendants pay the plaintiff's…

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.

Continue reading Showerama v Amtek & Keatley

Details

AGLC: Showerama v Amtek and Keatley [1996] QSC 87
Case: [1996] QSC 87
Decision Date: 23 May 1996

CaseChat Overview and Summary

In the Supreme Court of Queensland, Showerama Products Pty Ltd (the plaintiff) sought to enforce a judgment against Amtek Pty Ltd and Aaron Michael Keatley and Tracey Lee Keatley (the second defendants). The plaintiff had obtained a default judgment against Amtek Pty Ltd and a deemed accounting judgment against the second defendants. The plaintiff now sought to sell the second defendants' equity of redemption in a property to satisfy the judgment. The court had to determine whether the plaintiff should proceed with the sale under s.99 of the Property Law Act or execute the money judgment through a writ of fieri facias under the Land Titles Act.

The primary issue was whether the plaintiff should be allowed to sell the second defendants' equity of redemption through a registered liquidator or if the plaintiff should execute the judgment by a writ of fieri facias. The court considered the costs and potential returns from each method and whether the plaintiff had a duty to act in good faith towards the second defendants.

The court held that the plaintiff should not be allowed to sell the property through a registered liquidator. The court found that executing the judgment through a writ of fieri facias was a less expensive and more straightforward method. The court emphasized the importance of acting in good faith and taking reasonable care to ensure the property is sold at market value. Appointing a liquidator to sell the property could result in unfairly prejudicing the second defendants and increasing legal costs without clear benefits. The court concluded that the application should be dismissed, and the plaintiff should proceed with the writ of fieri facias.

The court dismissed the application and left the plaintiff to pursue the execution of the judgment through a writ of fieri facias under the Land Titles Act. The matter of costs was to be heard separately.

Orders