Suncorp-Metway Limited v Broustail of the Lilipili Trust
[2013] QDC 276
•7 November 2013
DISTRICT COURT OF QUEENSLAND
CITATION:
Suncorp-Metway Limited v Broustail of The Lilipili Trust [2013] QDC 276
PARTIES:
SUNCORP-METWAY LIMITED
(plaintiff)V
YAN BROUSTAIL, IN HIS OWN RIGHT AS TRUSTEE FOR THE LILIPILI TRUST
(defendant)FILE NO/S:
0982/13
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
7 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
Heard on the papers, 25 October 2013
JUDGE:
Reid DCJ
ORDER:
(1) The application be adjourned to a date to be fixed to enable the plaintiff to serve the tenant, Jeffrey Batten, with copies of the application and supporting material and a copy of these reasons.
(2) If the tenant wishes to contest the making of the order, he should file an affidavit stating that fact, exhibiting a copy of the lease and setting out any evidence as to the mortgagee’s consent to that lease and serve a copy thereof on the plaintiff’s solicitors, within seven days of the service required by sub-paragraph (1) hereof.
(3) Upon the filing of an affidavit of service of the application and supporting material and of these reasons on the tenant Jeffrey Batten, the matter may be listed by the applicant’s solicitors for further hearing by me on a date to be arranged with my Associate, and to be at least 10 days after service of the material on the tenant.
(4) In the event of the tenant filing an affidavit of the kind referred to in sub-paragraph (2) hereof, my Associate shall inform the tenant of the date of the hearing.
SOLICITORS:
Norton Rose Fulbright Australia for the Plaintiff
This is an application for leave pursuant to r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (hereinafter “UCPR”) to issue an enforcement warrant for possession of land at Burleigh Heads owned by the defendant.
The need for leave arises because, whilst an order was made against the defendant on 3 May 2013 giving the plaintiff possession of the Burleigh Heads property, the property appears in fact to be the subject of a tenancy agreement.
The plaintiff’s solicitors filed an application on 22 October 2013 seeking an order pursuant to r 913(2) of the UCPR that the plaintiff be granted leave to issue an enforcement warrant for possession of the property at 3/9 Kortum Drive, Burleigh Heads, Queensland and for an order pursuant to r 913 and r 915 of the UCPR that the Registrar issue an enforcement warrant in respect of the property in the form of a draft warrant enforceable against:
1. the defendant;
2. Kortum Signs;
3. Jeffrey Batten; and
4. the tenants and all occupants of the property at 3/9 Kortum Drive.
The application also sought an order that the defendants (my underlining) pay the plaintiff’s costs of and incidental to the application.
The plaintiff proposed that the application be decided without oral hearing on the papers pursuant to the relevant provision of the Rules.
An affidavit of Ian Quin filed on 22 October 2013 discloses that on 3 October he spoke to Jeffrey Batten at the subject premises. Mr Batten indicated that he had a three year lease of the premises and had been in occupation only for nine months of that three year term. He said he was not prepared to give Mr Quin a copy of the lease and said he would not be vacating the premises “unless a court order is in place”. He gave Mr Quin his mobile phone number.
Pursuant to s 66 of the Land Title Act 1994 a lease or amendment of a lease executed after registration of a mortgage of a lot is valid against a mortgagee only if the mortgagee consents to the lease or amendment of the lease before its registration.
In this case there is no material before me as to registration of the lease. There is also no evidence specifically stating that the mortgagee did not consent to the lease of the property by Mr Batten.
An affidavit of Michael Lenicka, a solicitor in the employ of the plaintiff’s solicitors, attests to the following:
1. that on 18 June 2013 the plaintiff’s solicitors by letter requested the tenants of the property to vacate by 2 July and to provide a copy of any lease or tenancy agreement to them;
2. that on 20 August 2013 by letter they requested Mr Batten to provide vacant possession by 28 August;
3. the tenant made no response to either letter;
4. after the events of 3 October referred to in Mr Quin’s affidavit, which I have already set out, the plaintiff’s solicitors requested the defendant to provide a copy of the lease but have received no response.
One might infer, perhaps, that there has in such circumstances been no consent to any lease entered into between the defendant and tenant, but as I have said there is no clear statement to that effect and the tenant has, because he has not been served, been given no opportunity to present evidence of any such consent.
The UCPR provide:
“913 Prerequisites to enforcement warrant for possession
(1) Unless the court otherwise orders, an order for the possession of land may be enforced by an enforcement warrant under rule 915 only if the person against whom the order is to be enforced is served with a copy of the order at least 7 days before the warrant is issued.
(2) If a person other than the person against whom the order is made is in occupation of land under a lease or tenancy agreement, an enforcement warrant under rule 915 may be issued only if the court gives leave.
914 Procedure
(1) A person applying for an enforcement warrant under rule 915 must file—
(a) an affidavit by the person stating whether to the best of the person's knowledge a person other than the person liable under the order is in occupation of the land under a lease or tenancy agreement; and
(b) an affidavit about compliance with rule 913.
(2) An affidavit may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief.
(3) The affidavit mentioned in subrule (1)(a) must be made not earlier than 2 business days before the date of the application.
915 Enforcement warrant for possession
A court may issue an enforcement warrant in the approved form authorising an enforcement officer to enter on the land described in the warrant and deliver possession of the land and appurtenances to the person entitled to possession.”
Whilst there is no specific reference to service of the application for the enforcement warrant or of supporting material on the tenant in those rules, I am not prepared to give leave in the absence of proof of such service. It might be that the mortgagee has not given consent to the lease as contemplated by s 66 of the Land Titles Act but in my view the tenant, who will be adversely affected by the making of an order for enforcement of the warrant, should be served so that he can present such evidence if consent was in fact given.
In the circumstances my order is that:
1. The application be adjourned to a date to be fixed to enable the plaintiff to serve the tenant, Jeffrey Batten, with copies of the application and supporting material and a copy of these reasons.
2. If the tenant wishes to contest the making of the order, he should file an affidavit stating that fact, exhibiting a copy of the lease and setting out any evidence as to the mortgagee’s consent to that lease and serve a copy thereof on the plaintiff’s solicitors, within seven days of the service required by sub-paragraph (1) hereof.
3. Upon the filing of an affidavit of service of the application and supporting material and of these reasons on the tenant Jeffrey Batten, the matter may be listed by the applicant’s solicitors for further hearing by me on a date to be arranged with my Associate, and to be at least 10 days after service of the material on the tenant.
4. In the event of the tenant filing an affidavit of the kind referred to in sub-paragraph (2) hereof, my Associate shall inform the tenant of the date of the hearing.
I indicate that if the tenant files such an affidavit before such directions hearing, I will list the matter for hearing before me at a future date. In the absence of any such affidavit, I shall make an order as requested by the applicant in accordance with the application and draft warrant that has been filed without requiring further submissions.
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