Commonwealth Bank of Australia v Morris [2023] QDC 82

DISTRICT COURT OF QUEENSLAND CITATION: Commonwealth Bank of Australia v Morris [2023] QDC 82 PARTIES: COMMONWEALTH BANK OF AUSTRALIA (Plaintiff) v ROBERT MORRIS (First Defendant) AND CINDY WATMOUGH (Second Defendant) FILE NO: BD No. 3018 of 2011 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Brisbane District Court DELIVERED ON: 27 April 2023 (ex tempore) DELIVERED AT: Brisbane HEARING DATE: 27 April 2023 JUDGE: Porter KC DCJ ORDER: 1. Pursuant to rule 799 of the Uniform Civil Procedure Rules 1999 (Qld) the Plaintiff is granted leave to proceed to enforce the Default Judgment entered on 11 October 2011 against the First Defendant and the Second Defendant in the amount of $296,088.30 inclusive of interest under section 59 of the Civil Proceedings Act 2011 (Qld) calculated as at 27 April 2023; and 2. Pursuant to rule 894 of the Uniform Civil Procedure Rules 1999 (Qld) the Plaintiff is granted leave to proceed to enforce the Default Judgment entered on 11 October 2011 against the First Defendant and the Second Defendant in respect of recovering possession of the land situated at 19 Pierpoint Street, Stanthorpe in the State of Queensland. -- 1 of 7 -- 2 CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the plaintiff obtained a default judgment against the first and second defendants on 11 October 2011 – where the plaintiff brought an application to enforce the judgment on 10 February 2023 – whether leave should be granted to enforce the default judgment under rr 799 and 894 of the Uniform Civil Procedure Rules 1999 (Qld) LEGISLATION Civil Proceedings Act 2011 (Qld) Land Title Act 1994 (Qld) Limitation of Actions Act 1974 (Qld) Uniform Civil Procedure Rules 1999 (Qld) SOLICITORS: Gadens for the plaintiff No appearance for the first defendant In person for the second defendant [1] This is an application by the Commonwealth Bank of Australia for leave, pursuant to rules 799 and 894 of the Uniform Civil Procedure Rules 1999 (Qld), to enforce a judgment. The judgment was given in default by the Deputy Registrar on 11 October 2011. The bank sought judgment for sums owing under a loan agreement and registered mortgages, along with possession of two properties, in respect of which they held registered mortgages, one at Cottonvale and one at Stanthorpe. It might seem remarkable that such a judgment has not been finalised in the succeeding 12 years, but that is what has happened in this case. [2] Rules 799 and 894 provide that an enforcement creditor needs leave of the court to enforce, if more than six years have passed since a money order was made or a non-money order was made, respectively. Obviously, the default judgment for money was a money order and the two orders for possession are non-money orders. It is important to keep in mind, broadly, that the bank approaches the court for leave, in circumstances where it has a judgment, and the judgment has never been appealed nor set aside and has stood for over a decade. In those circumstances, the bank submits, by reference to the relevant rules, the matters the plaintiff must satisfy the court of (which are analogous, but not identical, between the two rules), are these. [3] Under r 799(4): The applicant must satisfy the court: (a) as to the amount, including interest, owing on the date of the application; and -- 2 of 7 -- 3 (b) if it is more than six years since the money order was made, - as to the reasons for the delay. (c) if there has been a change in the enforcement creditor or enforcement debtor – as to the change that has happened; and (d) that the applicant is entitled to enforce the order; and (e) that the enforcement debtor against whom enforcement is sought is liable to satisfy the order. [4] Rule 894 has analogous requirements; r 894(3) provides: On an application for leave to start enforcement proceedings, the applicant must satisfy the court: (a) there had not been compliance with the order at the date of the application; and (b) as to the reasons of the delay; and (c) that the applicant is entitled to enforce the order; and (d) that the person against whom enforcement is sought is liable to comply with the order. [5] The bank served the proceedings on both defendants. The first defendant was, but is no longer, the partner of the second defendant. The ending of that relationship occurred in circumstances which have been trying, particularly for the second defendant, as I understand it. But, in any event, the applications have been served. [6] The hearing of the application was originally returnable on 29 March, so a month ago. However, Ms Watmough, lodged a complaint with AFCA. On 28 March 2023, that body provided limited consent to the bank, to continue with the hearing of the application. However, the plaintiff requested a two week adjournment, on the basis it was of the understanding that the second defendant, Ms Watmough, wished to oppose the application and intended to seek legal advice. There has been further consents granted by AFCA, including one which is current at the moment, relating to this particular hearing. That consent was given by AFCA on 21 April 2023. [7] The matter came before me on 13 April 2023. At that hearing a couple of things happened. Firstly, it seemed, to me, that what the bank was seeking to enforce, in terms of its proposed orders for the money judgment, included amounts of contractual interest and other amounts allegedly payable under the loan agreement which had arisen since the default judgment was given. Those amounts were included by the bank in the amount to be identified for the purposes of rule 799(4)(a). My preliminary view, which having heard argument I maintain, is that when identifying the amount, including interest, owing at the date of the application, for the purpose of rule 799(4)(a), it is the amount of the judgment owing at the date of the application which has to be identified. [8] As a matter of first principle, it seems to me, the court cannot include amounts referrable to causes of action that have arisen after the date of the judgment in the amount for which leave might be granted. What the court is concerned with, in this -- 3 of 7 -- 4 case, is giving leave to enforce a judgment. It has not ruled on any rights that might have arisen after the judgment and, therefore, there cannot be, in a sense, a de facto further default judgment in respect of those claims by including them in the amount for which leave to enforce will be granted. [9] It was that issue that caused me, in part, to adjourn the application, so that both parties could consider that issue. I also adjourned the application on the first occasion to give Ms Watmough a further opportunity to advance such other arguments as she could think of. [10] I adjourned the matter, on a reasonably short timetable. It needs to be kept in mind that it is now months since the application was first listed and this is a case where the bank is not seeking a judgment, but merely leave to enforce a judgment which has stood for a decade. However, I was also conscious that Ms Watmough needed more time to consider the submissions that were made by the bank. I thought there might be difficulties in mounting a contrary argument, but of course, if people are going to have faith in the system of judicial determination of disputes, they must within reason, have an opportunity to consider their own positions. I directed Ms Watmough to file any material that she wished, and the bank to file anything in response, along with submissions. The matter came back before me today for hearing. [11] Turning, now, to the discretionary criteria. It is necessary, in respect of the money judgment, for the bank to identify the amount, including interest owing at the date of the application, construed in the way I have already articulated it. The bank, with opportunity to reflect on the matter, put forward an account in respect of the judgment which excluded amounts arising after the judgment, other than statutory interest or in the alternative, contractual interest. The proper amount under r 799, for the reasons I have given, has to be the amount including statutory interest, under section 59 of the Civil Proceedings Act 2011 (Qld) (“CPA”). [12] I have not overlooked the fact that section 59 allows the court to otherwise order. However, I can see nothing in the evidence why I would otherwise order and compelling reasons why I would not. [13] The reasons for delay put before me by the bank and accepted by Ms Watmough indicate that the bank has consistently asserted its rights and, in those circumstances, and where the bank has been kept out of possession for a long period, and where there is no claim before me for rent or any other such amount, I cannot see any reason why statutory interest would not be payable. I also take into account, in reaching that conclusion, that the parties agreed to contractual interest and that that contractual interest would continue to accrue under the contract, as construed. That is not to say I am awarding it, it is just another reason, as a matter of discretion, why statutory interest seems to properly apply to the judgment. [14] The amount that the bank calculated on the basis that I have articulated is $296,088.30, which takes into account a large payment in respect of the Cottonvale property, as well as the accumulated payments made by the defendants, plus the -- 4 of 7 -- 5 statutory interest, from time to time. So they have met that requirement under Rule 799(4)(a). [15] The next thing that is required for both judgments is to explain the reasons for the delay. They are set out in paragraphs [18] to [23] of Ms Milligan’s submissions, on behalf of the bank. Ms Watmough did not cavil with that account. Although, Ms Watmough has her own views about some of the bank’s conduct, I do not have to deal with any of that. The delay is properly explained. [16] Subject to one thing that I need to deal with, there has been no change in the enforcement creditor or the enforcement debtor. [17] There has been no application to set aside or vary the default judgments and, accordingly, the discretionary criteria for both orders are met. [18] There is only one other matter to address in respect of r 894, which is that the non- money order has not been complied with. It is not in dispute that the bank does not have possession of the Stanthorpe property. However, in respect of the Cottonvale property it is obviously pointless to give leave to enforce that order because the property has been sold and the net proceeds have been credited to the default judgment. [19] There is a residual discretion. Issues going to discretion are dealt with, to some degree, in the bank’s submissions, from [26] to [33]. It is true to say that it would be a very unusual case where a secured creditor who has, advanced money, not been repaid and who is, entitled to possession of security for the debt would not be given leave to execute a judgment on discretionary grounds. Subject to one point I need to explain that was raised by Ms Watmough, I see no discretionary reason to refuse leave, in fact, there is every reason to grant it. [20] Ms Watmough worked diligently to identify any issue that might be available to her to resist the granting of leave. One point that she identified related to section 26(5) of the Limitation of Actions Act 1974 (Qld). That provisions provides: An action to recover arrears of interest payable in respect of a sum of money secured by a mortgage or other charge or payable in respect of proceeds of the sale of land or to recover damages in respect of such arrears shall not be brought after the expiration of 6 years from the date on which the interest became due. [21] That provision may well have had application, if it were open to the court to, in effect, give summary judgment for interest accruing under the contract after the date of the judgment. However, I have already found that I cannot do that, so section 26(5), which is concerned with actions to recover arrears of interest, is not applicable. To seek to add statutory interest to a judgment is not an action to recover interest. Statutory interest, which is what the bank is entitled to in respect of this application, arises under section 59 CPA as a matter of law because of the existence of the judgment. You do not have to bring an action for it. So s 26(5) does not apply here, in my respectful view. -- 5 of 7 -- 6 [22] The other point that Ms Watmough’s diligence generated turns on that old chestnut about misnomers. It is important, first, to identify the fundamental factual point that Ms Watmough makes. She identifies that, in effect, the suite of banking documents and real property documents in this case, along with the court heading, identify her as Cindy-Lou Watmough. She says that her name is not, and has never been, Cindy-Lou Watmough, but is Cindy Lou Watmough, and that she is known as Cindy Watmough. In my respectful view, to call somebody, whose name is accepted by the person to be Cindy Lou Watmough, Cindy-Lou Watmough in a document is not a material misdescription of their name. It is, to my mind, in substance, the same name. [23] Nonetheless, let it be assumed that there is a material difference between Cindy- Lou Watmough and Cindy Lou Watmough; there is two points that arise that need to be dealt with. First, Ms Watmough advanced an argument, (the implications of which might be not quite what she expected) based on her analysis of the Land Title Act 1994 (Qld). [24] She took me to section 185(1A) of the Land Title Act, which, effectively, provides that a registered mortgagee does not obtain the benefits of indefeasibility for a mortgage if the mortgagee, in relation to the instrument, does not comply with section 11A(2) or 11B(2), and the person who was the mortgagor was not the person who was, or was about to become, the registered proprietor of the lot. It is important to recognise that that exception to indefeasibility is cumulative. One cannot focus on demonstrating noncompliance with 11A(2) or 11B(2) alone and say, therefore, the mortgagee did not get the benefit of indefeasibility. The relevant mortgagee has to fail in one of those ways and, in addition, the person who was the mortgagor, under the instrument of mortgage, was not the person who was, or was about to become, the registered proprietor. [25] Now, the fact is there is absolutely no doubt at all that the person who appeared in court, whose name is Cindy Lou Watmough, is the person who was the mortgagor under the instrument of mortgage and who became the registered proprietor of the lot. There can be no doubt whatsoever, on the evidence before me, that Ms Watmough, the person who is appearing by video link in this case, and who has been involved in dealings with the bank since 2008, is that person. Therefore, it does not matter whether the mortgagee failed to comply with 11A(2) or 11B(2) or not, because, even if the bank did so fail, the other condition is not fulfilled. You can well imagine why that would be. [26] These provisions are concerned with imposing some sort of minimum duty on mortgagees to take steps to address the prospect of mortgage fraud. If the person, who is the registered proprietor is the mortgagor, then there is no reason why the mortgagee should not have the benefit of indefeasibility and that is plainly the situation here. [27] But, out of respect for Ms Watmough’s researches, I will deal with her point. She identified that the mortgagee, the bank, had failed to comply with 11A(2), as one of the two threshold, necessary but not sufficient conditions, for the exception to the -- 6 of 7 -- 7 indefeasibility of the mortgagee’s title in this case. That required the mortgagee to take reasonable steps to ensure the mortgagor, under the instrument, is identical with the person who is, or is about to become, the registered proprietor of the lot. [28] Now, as I have said, there is no doubt that the person who has appeared before me as Cindy Watmough is the person who was intended to be and became the registered proprietor of the lot. But there is the issue of the dash. Where the bank has been dealing with Ms Watmough and where she is, undoubtedly, the person who has borrowed the money and so forth, if she signs a mortgage document that uses her name as Cindy-Lou Watmough, then, in my respectful view, the bank is entitled to rely on that. After all, a person can be expected to know their own name and how it is to be presented. [29] Of course, the truth is that it may well have been an oversight or not picked up in various documents, but all that does is circle back to my proposition that, as a matter of substance, the names are the same. [30] For those reasons, I do not think that anything has been raised in respect of Ms Watmough’s name, respectfully, that provides any basis for me to refuse to give leave to enforce the first and third paragraphs of the default judgment in the way I have articulated and I will make orders consistent with these reasons, when Ms Milligan, for the bank, sends through some draft orders for me to consider, as soon as possible after the finalisation of this hearing. -- 7 of 7 --