St George Bank Ltd v. Giles

[2008] QDC 170

[2008] QDC 170

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RYRIE

No 3305 of 2007

ST GEORGE BANK LIMITED	Plaintiff
and
BRADLEY NORMAN GILES	Defendant

BRISBANE

..DATE 04/06/2008

ORDER

EX TEMPORE

HER HONOUR: This is an application pursuant to rule 292 of the Uniform Civil Procedure Rules by the applicant/plaintiff who seeks summary judgment.

The plaintiff was a company duly incorporated at the relevant time when it entered into a mortgage in respect of registered land with the defendant.  A bill of mortgage was created between the parties.  Under the relevant bill of mortgage there were terms and conditions of which the defendant/respondent had defaulted by, namely, failing to pay moneys that become due and owing under the mortgage on the due dates for payment and, as at today's date, remains in default and still remains in possession of the relevant land subject of the mortgage.

The principle as to whether or not an application such as this should be granted in the circumstance is in accordance with the principles of Deputy Commissioner of Taxation v Salcedo [2005] QCA 227.

The material in the affidavit material that I have before me in effect shows that the relevant facts between the parties are not in dispute, those that I have just mentioned.  What was in dispute initially, a matter which I raised with the parties when this first came on for hearing before me, was whether the notice as required to be given under the relevant terms and conditions of the mortgage had been done in a manner which was consistent with the schedule and the terms therein.  I was not completely convinced that they had been done in accordance with service at the last known address, particularly the notices for communication contained in the schedule which formed part of the bill of mortgage and its terms and conditions.

Having said that, it may well be that my view may have been in fact one that might have been cavilled with somewhere else.  However, to avoid having the matter proceed elsewhere and/or indeed have the matter be dismissed simply at that point that would force parties to have to outlay unnecessary costs I felt it appropriate that proper service should be effected in accordance with what I believed at least was the appropriate service of notices required in accordance with the relevant legislation, The Property Law Act, and The Land Title Act of 1994, respectively, as well as also consistent with obviously what was contained with the last known address.

The affidavits that I now have under the hand of Katherine Mary Williams, solicitor, filed 29th May 2008, show that the service of the relevant notices has been effected upon the various addresses, which include Mr Norman's address, namely, as solicitor at Eaton Lawyers, 76 Louden Street and any last known address that might've been communicated in the interim to the plaintiff/applicant.  Each of those have taken place in the proper form, namely, registered post, and I'm satisfied notice has been effected, therefore, properly.

There was some suggestion this morning by Mr Norman, admittedly from the Bar Table, which I was willing to accept from Mr Norman being an officer of the Court that he has some instructions that there might be in fact a contract for sale on the house at the present time. As I explained to Mr Norman and it needs to be made clear, that that is not a factor that's relevant so much for the purpose of my determination under the principles of Salcedo for an application pursuant to Rule 292 but rather a matter that might ultimately impact upon the parties in the interim before vacant possession is required to be handed over within 14 days pursuant to my order.

As I made the comment, and it needs to be said, contracts on properties fall over for a variety of reasons and it has been 6 weeks that has elapsed since the parties were last here and, in the circumstances, I don't see any reason to delay the matter any further.

I'm satisfied, therefore, in accordance with the principles of Salcedo that the application pursuant to rule 292 is one that should be granted because, in my view, there is no defence and there is no way that the defendant at this point at least can demonstrate to me that there is an issue between the parties that should proceed to trial at this stage.

In all the circumstances, I make the order as follows pursuant to Rule 292 of the Uniform Civil Procedure Rules the plaintiff have judgment on the claim; that the defendant within 14 days of the date hereof deliver up to the plaintiff vacant possession of the property situated at 28 Taragon Street, Bald Hills comprised in certificate of title reference 14336224 being Lot 14, on Registered Plan 118200 and situated in the County of Stanley, Parish of Nundah.

That shall be my order.

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