Westpac Banking Corporation v Adhikari - [2023] QDC 203

DISTRICT COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Adhikari [2023] QDC 203

PARTIES:

WESTPAC BANKING CORPORATION

(plaintiff/respondent)
v

RAJAN ADHIKARI
(defendant)
and
DOUGLAS GRAEME MCCOY
(applicant)

FILE NO:

BD No 1433/2023

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 November 2023

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

16 October 2023

JUDGES:

Sheridan DCJ

ORDERS:

1. The application filed on 11 October 2023 is dismissed.

2. Douglas Graeme McCoy pay the plaintiff’s costs of and incidental to the application to be assessed on the indemnity basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the plaintiff was the mortgagee of property owned by the defendant – where the plaintiff obtained default judgment for recovery of possession of the property – where the plaintiff was granted leave to issue an enforcement warrant for possession of the property – where a non-party purporting to own the property and also purporting to act on behalf of the defendant files an appeal against the grant of leave and applies for a stay of the enforcement warrant for possession pending appeal – whether the court should grant a stay of the enforcement warrant for possession

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld), r 681, r 761, r 913, r 915

CASES:

Attorney-General for the State of Queensland v Fardon [2011] QCA 111
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Grocon Constructors (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 333
House v The King (1936) 55 CLR 499
Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255
Westpac Banking Corporation v Adhikari [2023] QDC 169

COUNSEL:

D M Turner for the plaintiff/respondent
The applicant appeared on his own behalf

SOLICITORS:

MinterEllison for the plaintiff/respondent
The applicant appeared on his own behalf

Introduction

By an application filed on 11 October 2023, Mr Douglas McCoy sought an order for a stay of execution of a warrant for the repossession of property described as “1/7 and 2/7 Brugha Close Collingwood Park” (Property) by the plaintiff, Westpac Banking Corporation.
The stay was sought pending the determination of an appeal from the decision of this court made on 21 August 2023 which granted leave to Westpac to issue the warrant.
Execution of the enforcement warrant was to take place on 12 October 2023. Upon the filing of the application, Westpac postponed the enforcement warrant pending the determination of this application.
I have concluded that the application ought be dismissed.
Judgment in favour of Westpac
Westpac is the registered mortgagee of the Property. The defendant named in the proceedings is the registered proprietor.
Westpac commenced proceedings against the defendant on 10 June 2021, seeking recovery of possession of the Property as a result of non-payment by the defendant of a loan which was secured by a mortgage.
On 10 February 2023, judgment by default for possession…

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.

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Details

Case: [2023] QDC 203
Decision Date: 10 November 2023

CaseChat Overview and Summary

The case of Westpac Banking Corporation v Adhikari involved Westpac, the mortgagee of property owned by the defendant, seeking to enforce a default judgment for the recovery of possession of the property. The court was asked to determine whether to grant a stay of the enforcement warrant for possession that Westpac had applied for, pending an appeal filed by a non-party, Douglas Graeme McCoy, who purported to act on behalf of the defendant. The central legal issue was whether the court should grant a stay of the enforcement warrant for possession, considering the circumstances and the arguments presented by McCoy.

The court considered the criteria for granting a stay of an order pending an appeal, as outlined in the relevant rules of civil procedure. The court noted that McCoy, despite his claims of having an executory contract to purchase the property, was not the registered proprietor. The court also highlighted that Westpac had not done anything to bind itself to the dealings between McCoy and the defendant. Moreover, the court found that McCoy did not have a good arguable case for refusing the warrant and that the balance of convenience was strongly in favour of Westpac. Consequently, the court concluded that the application for a stay should be dismissed.

The court ordered that the application filed on 11 October 2023 by McCoy be dismissed. Additionally, the court made an order for McCoy to pay the plaintiff's costs of and incidental to the application, to be assessed on the indemnity basis. This decision underscores the court's focus on the merits and the balance of convenience in enforcement proceedings, and it reinforces the importance of proper legal representation and adherence to court processes.

Orders

Orders of the court

1. The application filed on 11 October 2023 is dismissed.

2. Douglas Graeme McCoy pay the plaintiff’s costs of and incidental to the application to be assessed on the indemnity basis.

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

I have concluded that the application ought be dismissed.Judgment in favour of Westpac Westpac is the registered mortgagee of the Property. The defendant named in the proceedings is the registered proprietor. Westpac commenced proceedings against the defendant on 10 June 2021, seeking recovery of possession of the Property as a result of non-payment by the defendant of a loan which was secured by a mortgage. On 10 February 2023, judgment by default for possession was entered in favour of Westpac. Both the defendant and Mr McCoy were served with the judgment for possession on 13 February 2023, under cover of a letter from Minter Ellison. The letter was sent to the respective email addresses held for each of the defendant and Mr McCoy and to residential addresses associated with the defendant. No appeal has ever been lodged against the judgment and the defendant has failed to comply with the judgment for possession.Application for Enforcement Warrant Pursuant to r 915 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), on 21 July 2023, Westpac applied for the issuance of an enforcement warrant for possession. As it was possible that people other than the defendant were in occupation of the Property under a lease or tenancy agreement, Westpac applied pursuant to r 913(2) of the UCPR for leave to issue the enforcement warrant. On 24 July 2023, Westpac’s application filed 21 July 2023 was sent to the defendant, Mr McCoy and the occupiers of the Property by post to their respective known residential addresses, including to the occupiers at 1/7 and 2/7 Brugha Close, Collingwood Park, and to the respective email addresses held on file for the defendant and Mr McCoy. The two original supporting affidavits filed with the application and draft enforcement warrant were forwarded at that time. The occupiers of 1/7 and 2/7 Brugha Close, Collingwood Park were personally served on 2 August 2023 with a copy of the judgment for possession and Westpac’s application for the issue of an enforcement warrant. The covering letter from Minter Ellison confirmed the hearing date of 18 August 2023. At the time of service, the occupiers were asked by the process server whether they had a tenancy agreement. One of them responded that it was a private arrangement with the owner Douglas for a further six months. The other responded that they knew the owner. The application was heard before Judge Porter KC on 18 August 2023. The defendant and the occupants of the Property did not appear at the hearing. Mr McCoy appeared on his own behalf and purportedly on behalf of the defendant. At the hearing, further affidavit material was read and filed on behalf of Westpac with copies being provided to Mr McCoy at the hearing. At the hearing, Mr McCoy sought an adjournment of the application to put on evidence. This was refused. It was not only held that Mr McCloy had plenty of notice of the application and should have prepared material for the hearing, but also that any adjournment would have been futile given that Mr McCloy had no arguable basis to resist the issue of a warrant.[1] [1]Westpac Banking Corporation v Adhikari [2023] QDC 169, [7].

Ratio Decidendi

Legal Principle Established

Westpac also referred to the websites maintained by Mr McCoy and the videos linked to those sites containing presentations by Mr McCoy on how to present yourself in court and how to take over properties. The videos included Mr McCoy giving advice to viewers on how people can represent themselves, on preparing affidavits and submissions and on contract law. Consideration The Court may grant a stay of an order pending an appeal pursuant to r 761(2) of the UCPR. In the exercise of that power, a court should not grant a stay absent a demonstration of a good arguable case on appeal and having given consideration to the competing disadvantages.[3][3]Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255, 2-3; Attorney-General for the State of Queensland v Fardon [2011] QCA 111, [15]. Despite his claims that he has in place an executory contract to purchase the Property from the defendant, Mr McCoy is not the registered proprietor of the Property. Westpac still maintains a registered mortgage over the Property. It has not been paid out. Neither Mr McCoy nor the defendant have tendered payment of the mortgage debt, which as at 13 October 2023 is in the sum of $595,116.59. There is no evidence that Westpac did anything which bound it to the dealing between Mr McCoy and the defendant, or the purported offer by Mr McCoy to Westpac. There is an abundance of correspondence between Westpac and the defendant and Westpac and Mr McCoy which indicates very clearly that Westpac would not deal with Mr McCoy and did not accept the power of attorney document upon which Mr McCoy sought to rely. Apart from an affidavit addressing issues of service, the further affidavits predominantly contained correspondence between Westpac and/or Minter Ellison and Mr McCoy. Mr McCoy must have been very familiar with the contents of those documents. It is accordingly difficult to give much weight to the complaint by Mr McCoy of the hearing being unfair because he was not served with all the affidavits well prior to the hearing. Whilst Mr McCoy originally contended that he did not have an opportunity to put all the documents before the court on the last occasion, later, when referring to the large volume of material which had been handed to him by Westpac at the hearing before Judge Porter KC, he conceded that he did not think he needed more evidence “when the evidence is already in here.” Neither Mr McCoy nor the defendant have ever taken any steps to have the judgment for possession obtained in February 2023 set aside. There is nothing showing that Mr McCoy has a good arguable case for refusal of the warrant, nor is there any material showing that the balance of convenience lies with him. Indeed, the balance of convenience is strongly in favour of the registered mortgagee. Accordingly, the application filed on 11 October 2023 by Mr McCoy should be dismissed.Costs Pursuant to r 681 of the UCPR, the court can make a costs order against a non-party. Such orders can be made against non-parties responsible for the bringing of proceedings, like Mr McCoy.[4] [4]Grocon Constructors (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 333, [15]-[24].

CITATION:	Westpac Banking Corporation v Adhikari [2023] QDC 203
PARTIES:	WESTPAC BANKING CORPORATION (plaintiff/respondent) v RAJAN ADHIKARI (defendant) and DOUGLAS GRAEME MCCOY (applicant)
FILE NO:	BD No 1433/2023
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 November 2023
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	16 October 2023
JUDGES:	Sheridan DCJ
ORDERS:	1. The application filed on 11 October 2023 is dismissed. 2. Douglas Graeme McCoy pay the plaintiff’s costs of and incidental to the application to be assessed on the indemnity basis.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the plaintiff was the mortgagee of property owned by the defendant – where the plaintiff obtained default judgment for recovery of possession of the property – where the plaintiff was granted leave to issue an enforcement warrant for possession of the property – where a non-party purporting to own the property and also purporting to act on behalf of the defendant files an appeal against the grant of leave and applies for a stay of the enforcement warrant for possession pending appeal – whether the court should grant a stay of the enforcement warrant for possession
LEGISLATION:	Uniform Civil Procedure Rules 1999 (Qld), r 681, r 761, r 913, r 915
CASES:	Attorney-General for the State of Queensland v Fardon [2011] QCA 111 Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225 Grocon Constructors (Qld) Pty Ltd v Juniper Developer No 2 Pty Ltd [2015] QSC 333 House v The King (1936) 55 CLR 499 Raschilla & Anor v Westpac Banking Corporation [2010] QCA 255 Westpac Banking Corporation v Adhikari [2023] QDC 169
COUNSEL:	D M Turner for the plaintiff/respondent The applicant appeared on his own behalf
SOLICITORS:	MinterEllison for the plaintiff/respondent The applicant appeared on his own behalf