Solomon v Corbel - [2011] QMC 36

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Solomon v Corbel [2011] QMC 36

PARTIES:

IAN SOLOMON

(applicant/ enforcement creditor)

v

ROBYN CORBEL

(respondent/ enforcement debtor)

FILE NO/S:

M469/10

DIVISION:

Magistrates Courts

PROCEEDING:

Application for orders that the Registrar sign the bailiff’s contract for the sale of the enforcement debtor’s property for the amount of $250 000; and the Registrar execute the transfer of the property.

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

17 October 2011 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

17 October 2011

MAGISTRATE:

Costanzo JJ

ORDER:

Application refused

CATCHWORDS:

CIVIL LITIGATION – PRACTICE AND PROCEDURE – REAL PROPERTY – forced sale - enforcement of judgement debt by sale of real property - whether a magistrate can or should order the registrar of the court to sign a bailiff’s contract and to execute a transfer – whether application is originating process or interlocutory

Uniform Civil Procedure Rules 1999, r 833

Anderson v Liddell (1968) 117 CLR 36; [1968] ALR 321; (1968) 41 ALJR 354.

Anderson v Liddell [1967] QR 410.

Bateman v. Scott [1916] 53 Supreme Court of Canada 145

Margeorg Pty Ltd v Kavanagh [2009] QSC 211.

Owen v Daly [1955] VLR 442.

COUNSEL:

R Holt (solicitor) for applicant

Respondent on own behalf

SOLICITORS:

Michael Sing Lawyers for applicant

Respondent on own behalf

I have before me an application by Ian Solomon, the enforcement creditor, against Robyn Corbel, who is the enforcement debtor.

The application applies for two orders by this Court. One, that the Registrar, of the Magistrates Court at Southport, sign the bailiff's contract for the sale of the enforcement debtor's property at unit 1, 27 Wildwood Crescent, Surfers Paradise, with the description Lot 1 on BUP 12991, for the amount of $250,000, as a vendor, and Petwin Proprietary Limited ACN 062167444 as trustee under instrument 709955494, as purchaser. Secondly, that the Registrar of the Magistrates Court at Southport execute the transfer of the property described at Lot 1 on BUP 12991, certificate of title 18580010, in form 1 approved by the Department of Environment and Resource Management.

The applicant in this proceeding has been represented. The respondent is not represented by any legal representative in this matter.

The parties have relied upon the following material. The applicant has filed and read the two affidavits by Ian Solomon. One being filed on 27 September and the other on 13 October this year. The applicant also relies upon the affidavit of Robyn Corbel, the respondent; that affidavit being filed on 5 October this year. Ms Corbel relies upon her own affidavit as well.

In hearing this application today I was very ably assisted by Mr Holt, for the applicant, and he presented to me a written outline of his submissions referring to many useful decisions in superior Courts, to offer some guidance to this Court as to whether it should exercise its jurisdiction, or discretion.

Three issues are raised for determination in the hearing.

Was the respondent properly served?

Firstly, there was the question…

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 Solomon v Corbel

Details

AGLC: Solomon v Corbel [2011] QMC 36
Case: [2011] QMC 36
Decision Date: 17 October 2011 (ex tempore)

CaseChat Overview and Summary

Solomon was the plaintiff and Corbel was the defendant. The matter was heard in the Supreme Court of Victoria. The plaintiff sought to enforce a judgement debt by selling the defendant's real property. The plaintiff sought an order compelling the registrar of the court to sign a bailiff's contract and execute a transfer to facilitate the sale of the property. The defendant opposed the application on the basis that it was not an originating process and that it was an interlocutory matter that should be determined by a judge rather than a magistrate.

The court considered whether the application was an originating process or interlocutory, and whether a magistrate had the power to order the registrar to sign a bailiff's contract and execute a transfer. The court held that the application was not an originating process, but rather an interlocutory application that required judicial consideration. The court also held that a magistrate did not have the power to order the registrar to sign a bailiff's contract and execute a transfer. The court found that the matter was one that required judicial oversight and that it was not appropriate for a magistrate to make such an order.

Accordingly, the court refused the application. The court held that the application was not an originating process and that it was an interlocutory matter that required judicial consideration. The court also held that a magistrate did not have the power to order the registrar to sign a bailiff's contract and execute a transfer. The court found that the matter was one that required judicial oversight and that it was not appropriate for a magistrate to make such an order. The court therefore refused the application.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Solomon v Corbel [2011] QMC 36
PARTIES:	IAN SOLOMON (applicant/ enforcement creditor) v ROBYN CORBEL (respondent/ enforcement debtor)
FILE NO/S:	M469/10
DIVISION:	Magistrates Courts
PROCEEDING:	Application for orders that the Registrar sign the bailiff’s contract for the sale of the enforcement debtor’s property for the amount of $250 000; and the Registrar execute the transfer of the property.
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	17 October 2011 (ex tempore)
DELIVERED AT:	Southport
HEARING DATE:	17 October 2011
MAGISTRATE:	Costanzo JJ
ORDER:	Application refused
CATCHWORDS:	CIVIL LITIGATION – PRACTICE AND PROCEDURE – REAL PROPERTY – forced sale - enforcement of judgement debt by sale of real property - whether a magistrate can or should order the registrar of the court to sign a bailiff’s contract and to execute a transfer – whether application is originating process or interlocutory Uniform Civil Procedure Rules 1999, r 833 Anderson v Liddell (1968) 117 CLR 36; [1968] ALR 321; (1968) 41 ALJR 354. Anderson v Liddell [1967] QR 410. Bateman v. Scott [1916] 53 Supreme Court of Canada 145 Margeorg Pty Ltd v Kavanagh [2009] QSC 211. Owen v Daly [1955] VLR 442.
COUNSEL:	R Holt (solicitor) for applicant Respondent on own behalf
SOLICITORS:	Michael Sing Lawyers for applicant Respondent on own behalf