Westpac Banking Corporation v Hemara

[2022] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Hemara [2022] QDC 156

PARTIES:

WESTPAC BANKING CORPORATION
(Plaintiff)

v

JOELENE ANDRIEA HEMARA

(Defendant)

FILE NO/S:

BD 655/2018

DIVISION:

Civil

DELIVERED ON:

11 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Barlow QC DCJ

ORDERS:

The registrar issue an enforcement warrant in the form attached to the application filed on 20 June 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE – PROCEDURE – TAKING POSESSION – default judgment for possession of the land was given on an earlier occasion – plaintiff sought leave to issue enforcement warrant – whether leave required - no evidence to demonstrate that the property is not occupied by the owner –failure to comply with the rules for affidavit evidence – whether the court can make orders notwithstanding defects in the evidence of the applicant

r 913(2) r 915, Uniform Civil Procedure Rules 1999

SOLICITORS:

Thomson Geer for the plaintiff

No appearance for the defendant

1. The plaintiff applies, purportedly under subrule 913(2) and rule 915 of the Uniform Civil Procedure Rules 1999, for leave to issue an enforcement warrant for possession of property owned by the defendant.

2. The plaintiff is mortgagee of the property and pleaded, in its statement of claim, that the defendant had defaulted in payment of the loan secured by the mortgage.  The plaintiff commenced this proceeding by claim and statement of claim.  Those documents were served on the defendant by posting them to her at the address of the property.  That was a method of service of court documents that the parties had agreed in the mortgage.[1]

   [1]See rule 119(1)(a), (2).

3. When the defendant failed to file and serve a notice of intention to defend and defence, default judgment for possession of the land was given.  I am satisfied that that judgment was served on the defendant by mail sent on 2 September 2021.[2]  Therefore, the requirement under subrule 913(1) has been met.

   [2]Although the affidavit deposing to that service was curiously worded (saying “I am that (sic) on 2 September 2021 Thomson Geer caused a copy of the Judgment entered against the Defendant to be served upon the Defendant by ordinary pre-paid post under cover of a letter to the Defendant …”), the letter itself was signed by the deponent of the affidavit and I take her evidence to mean that the letter was in fact posted to the defendant.

4. I do not understand why this application has been made under subrule 913(2), as there is no evidence that the property is occupied other than by the defendant.  Nor is there any evidence that, if other persons do occupy the property, they do so under a lease or tenancy agreement.  In an affidavit sworn by a “Paralegal” employed by Thomson Geer (the plaintiff’s solicitors), the deponent says that, on about 26 July 2021, Thomson Geer received instructions (presumably, although she does not say it, from the plaintiff) “to issue a notice to vacate to the occupants in respect of the property.”  She goes on to give evidence that Thomson Geer then “caused for (sic) the Occupants of the Property to be personally served with a Notice to Vacate … in accordance with section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 …”. However, she does not depose that she personally knows, nor that she has been informed by someone and believes, that there are any occupants of the property other than the defendant.

5. Another deponent (apparently a process server, although he does not say so) deposes that, on 30 July 2021, he served “the Occupants” with a Notice to Vacate and a letter from Thomson Geer by placing them in an envelope addressed to the Occupants and affixing it to the front door of the premises.  Again, he does not depose that there are any occupants of the property other than the defendant.

6. The “Paralegal” goes on to say that:

   On 22 November 2021 Thomson Geer instructed the Plaintiff’s agent to undertaken (sic) an occupancy check at the Property.  The Plaintiff’s agent conducted the occupancy check at the Property, and confirmed that the Occupant(s) remained in occupation of the Property, despite the issue of the Notice to Vacate.  Exhibited … is a copy of the agent’s report.

7. The exhibited document is inadmissible.  It does not identify the author.  It says that “our agent attended the property and reports as follows” without identifying the agent.  There is no affidavit or report from the agent.  The report does not say what the Paralegal purports to summarise, as quoted above.  Rather, it states that the agent spoke with a cleaner who confirmed that the customer (presumably the defendant) was still the owner and occupier.  The author of the document (it appears) then concludes, “The property is therefore still occupied by the owner.”

8. The paragraph of the affidavit quoted above is therefore hearsay (what the deponent says the document says) on hearsay (what the author was told by the agent) on hearsay (what the agent was told by the cleaner).  This court should not be expected to rely on such unreliable “evidence” in an application for leave to take a step that will lead to a person losing ownership of land.  The proper course would have been for the agent who spoke with the cleaner to have made an affidavit deposing to what the cleaner told the agent and that the agent believes that to be true.

9. However, as I have said, there is no evidence that there are in fact any occupants of the property other than the defendant, let alone that they are occupants under a lease or tenancy agreement.  I am puzzled why the plaintiff has taken steps to give notice to vacate to persons who appear not to exist.

10. As there is no evidence that there are any occupants other than the defendant, no leave is required to issue an enforcement warrant.  Subrule 913(2) does not apply. 

11. I note also that the deponent’s affidavit, presumably intended to comply with rule 914(1)(a), does not in fact state what is required by that paragraph, nor was it made within 2 business days before the date of the application.  The affidavit was made on 14 June 2022.  The application was filed on 20 June 2022: 4 business days after the affidavit was made.

12. Notwithstanding these deficiencies in the evidence supporting the application, the failure to comply with the rules concerning affidavit evidence (particularly rule 430) is an irregularity, as is the failure to comply with rule 914.  The court may declare such a document to be effectual and may make such order dealing with the proceeding as it considers appropriate.[3]  The court must also apply the rules “with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”[4]

    [3]Rule 371.

    [4]Rule 5(2).

13. As I am satisfied that the judgment was served on the defendant and there is no evidence that the property is occupied by anyone other than the defendant, I consider it consistent with rule 5 and appropriate that an enforcement warrant be issued notwithstanding the deficiencies in the evidence.  I shall therefore direct the registrar to issue an enforcement warrant in the form attached to the application.