Westpac Banking Corporation v Adhikari

DISTRICT COURT OF QUEENSLAND

CITATION: 

Westpac Banking Corporation v Adhikari [2023] QDC 169

PARTIES: 

WESTPAC BANKING CORPORATION
(Plaintiff/Applicant)

v

RAJAN ADHIKARI  
(Defendant/Respondent)

FILE NO:

BD No 1433 of 2021

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT: 

District Court of Queensland in Brisbane

DELIVERED ON:

18 August 2023 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

18 August 2023  

JUDGE:

Porter KC DCJ

ORDER:

1.       The plaintiff be granted leave pursuant to rules 913(2) and 915 of the Uniform Civil Procedure Rules 1999 (Qld) to issue an enforcement Warrant for Possession of the land described as Lot 29 on Registered Plan No. 253186, being all of the contained in Title 50932856 and situated at Lot 29 Brugha Close (also known as 7 Brugha Close; also known as 1/7 and 2/7 Brugha Close), Collingwood Park in the State of Queensland (“Property”);

2.       A Warrant for Possession of Land be issued to the Enforcement Officer to deliver to possession to the plaintiff of the Property;

3.       The Warrant for Possession of Land be issued against:

a.   Rajan Adhikari;

b.   Douglas Graeme McCoy; and

c.   Any occupants of the Property;

4.   No order as to costs.

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 a claim for repayment of the debt under the mortgage – where the plaintiff applies for a warrant for possession of the property – whether the court should grant an encrocement warrant for possession  

SOLICITORS:

MinterEllison for the plaintiff   

1. This is an application by Westpac Banking Corporation to obtain the issue of an enforcement warrant for possession. The issues that arise and the material necessary to make good the conditions for the issue of the enforcement warrant under the UCPR are addressed in the outline of argument filed by the bank for today’s hearing. I do not need to go into that in any detail. All I need to observe is that the solicitors and the bank have been more than usually careful in addressing the issues that arise under the rules, particularly under rule 913 and 914 for procedural requirements to issue enforcement warrants. The defendant, Mr Adhikari, did not appear. There were some people apparently in some form of possession. The bank dealt with that in a conservative way, as articulated in paragraphs 24 and following of the outline. None of those persons appeared to be heard in respect of the application for possession.

2. A Mr McCoy appeared.  Mr McCoy was served out of an abundance of caution by the bank.  He claimed and claims to be a purchaser of the property under a contract of sale.  He had also lodged a caveat in April 2019, although, that caveat was subsequently removed.  Mr McCoy appeared today.  He complained of a spelling mistake in Mr Adhikari’s name, which is entirely irrelevant to whether I make…