Cooper v Kuskopf [2023] QDC 74

DISTRICT COURT OF QUEENSLAND CITATION: Cooper v Kuskopf [2023] QDC 74 PARTIES: ROBERT ASHLEY COOPER (plaintiff/applicant) v MICHELLE JOY KUSKOPF (defendant/respondent) FILE NO/S: D151/2022 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 5 May 2023 DELIVERED AT: Maroochydore HEARING DATE: Decided on the papers without oral hearing JUDGE: Cash DCJ ORDERS: 1. The application be heard and decided without an oral hearing. 2. Pursuant to section 117(b)(ii) of the Land Title Act 1994 (Qld) the binding time for the writ of execution (Title reference 50517471 Dealing No: 721278405) be extended for a period of 12 months from 5 May 2023. 3. Pursuant to section 117(b)(ii) of the Land Title Act 1994 (Qld) the binding time for the writ of execution (Title reference 50264358 Dealing No: 722204131) be extended for a period of 12 months from 5 May 2023. CATCHWORDS: PROCEDURE – ENFORCEMENT – where default judgment was entered against the defendant – where the applicant obtained a warrant of enforcement – where the applicant seeks to seize and sell real property of the defendant to settle the judgment debt – where the warrant of enforcement was affected by error – where delay in registering writ of execution pursuant to Land Title Act 1994 (Qld) – whether there should be an extension of the writ of execution LEGISLATION Land Title Act 1994 (Qld), s 117 Uniform Civil Procedure Rules 1999 (Qld), r 371, r 490 CASES: Secure Funding Pty Ltd v Doneley & Anor [2010] QSC 91, [21] Re Footbridge Pty Ltd; ex p. Commissioner of Taxation (1985) Q Conv R ¶54-188 -- 1 of 3 -- 2 APPEARANCES: Andrew Gardiner Law for the applicant No appearance for the respondent [1] This proceeding concerns a claim by the applicant for about $400,000 being unpaid loans, commissions, and interest. The claim was filed in October 2022 and no defence has been entered. In December 2022 the applicant obtained default judgment from the registrar. This was followed by an application for an enforcement warrant in relation to two properties at Moranbah registered in the defendant’s name. The enforcement warrant issued but it was affected by an error – the warrant was said to have expired the day before it was issued. This error was detected when the applicant attempted to register it on each property as a writ of execution pursuant to the Land Title Act 1994 (Qld) (‘the Act’).1 The applicant brought the matter to the attention of the court which issued an amended warrant with the correct dates. This warrant was finally registered as writs of execution in respect of each property on 16 January 2023. [2] The delay in registration of the writs delayed a valuation of the property the applicant wishes to be sold to settle the judgment debt. The valuation was also complicated by the location of the property in Moranbah in Central Queensland. It was not until 20 March 2023 that the solicitors for the applicant wrote to the court with the valuation and other necessary material to commence the process for enforcement of their judgment by the sale of the property.2 On 23 March 2023, the Sherriff’s delegate estimated this process of sale will take about four months.3 That is, it is unlikely any sale will be completed before the end of July 2023. [3] If that is the case, the writs of execution will probably cease to be effective before a sale is effected. [4] Section 117 of the Act provides: 117 Effect of registering a writ of execution For purchasers, lessees, mortgagees and creditors, a writ of execution— (a) can not, until registered, bind or affect registered lots, whether or not there is actual or constructive notice of the writ; and (b) binds or affects registered lots only if the writ is executed and put in force within— (i) 6 months of its lodgement; or (ii) the extended time allowed by the court where the writ is filed and notified to the registrar. [5] Pursuant to section 117, the interest of a judgment creditor under a registered writ of execution is subject only to prior legal and equitable interests in the land.4 But pursuant to section 117(b)(i) the interest of a judgment creditor under a registered writ of execution lapses if the property is not seized and sold by the Sherriff within six 1 Where a writ of execution is defined as ‘a writ or warrant of execution after judgment in any court, and includes an enforcement warrant’. 2 Affidavit of Nicol Carel Pinsloo, affirmed 3 May 2023, court document 13, exhibit NCP2-1. 3 Affidavit of Nicol Carel Pinsloo, affirmed 3 May 2023, court document 13, exhibit NCP2-1. 4 Secure Funding Pty Ltd v Doneley & Anor [2010] QSC 91. -- 2 of 3 -- 3 months of the lodgement of the writ.5 In this case that period will expire in June or July this year.6 While it is possible a sale might be effected before the writs expire, that seems unlikely. [6] Subsection 117(b)(ii) authorises the court to extend the time within which the writ ‘binds or affects’ the land. The applicant brings this application pursuant to the subsection to extend the time for 12 months. The applicant also proposes the matter be decided on the papers without an oral hearing. [7] The application and proposal have been served on the defendant via her solicitor.7 She has not filed any material. As filed, the proposal that the matter be decided on the papers was deficient. While the applicant filed a notice and draft order, it was not accompanied by a ‘written submission in support’, as required by rule 490(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld). This deficiency was brought to the attention of the applicant’s lawyers who, on 3 May 2023, filed a short, written submission in support of the application. In the circumstances, it is appropriate to excuse the non-compliance with rule 490(1)(b) and to declare the applicant’s request for the matter to be decided on the papers to be effectual.8 [8] What I have noted above is sufficient to demonstrate that without an extension the applicant is likely to face difficulties in enforcing the judgment debt through the sale of the defendant’s property. In the absence of any material from the defendant resisting the extension of the writs, it is appropriate to grant the application. [9] The only matter left to consider is the form of the order. The draft proposed by the applicant would have each writ ‘extended for a period of 12 months’. It is not stipulated whether this is intended to be 12 months from the date of the order, or 12 months from when the writs would otherwise expire. Confusion in this regard could have been avoided if the order proposed a date instead of a time period. A specific date would dispense with the need to calculate when the writs will expire. Considering the estimate about how long it might take to effect a sale of the property, I will make orders extending the writs for 12 months from today. That will provide ample time for the process to be completed. [10] For these reasons there will be orders that: 1. The application be heard and decided without an oral hearing. 2. Pursuant to section 117(b)(ii) of the Land Title Act 1994 (Qld) the binding time for the writ of execution (Title reference 50517471 Dealing No: 721278405) be extended for a period of 12 months from 5 May 2023. 3. Pursuant to section 117(b)(ii) of the Land Title Act 1994 (Qld) the binding time for the writ of execution (Title reference 50264358 Dealing No: 722204131) be extended for a period of 12 months from 5 May 2023. 5 Secure Funding Pty Ltd v Doneley & Anor [2010] QSC 91, [21] citing Re Footbridge Pty Ltd; ex p. Commissioner of Taxation (1985) Q Conv R ¶54-188. 6 I say June or July as it will depend on whether the time runs from the first attempt to lodge the writ on or about 23 December 2022 or from the lodgement of the corrected writ on or about 12 January 2023. Nothing turns on this as even if the later date is taken, I am satisfied the Sherriff’s processes are unlikely to be completed by mid-July 2023. 7 Affidavit of Nicol Carel Pinsloo, deposed 17 April 2023, court document 12, exhibits NCP-2, NCP-3 and NCP-4. 8 Pursuant to Uniform Civil Procedure Rules 1999 (Qld), r 371. -- 3 of 3 --