Bruder Expedition Pty Ltd v Leigh [2020] QDC 187

DISTRICT COURT OF QUEENSLAND CITATION: Bruder Expedition Pty Ltd v Leigh [2020] QDC 187 PARTIES: BRUDER EXPEDITION PTY LTD (plaintiff) v TRACY LEIGH (defendant) FILE NO/S: 2380 of 2019 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court DELIVERED ON: 7 August 2020 DELIVERED AT: Brisbane HEARING DATE: 17 and 31 July 2020 JUDGE: Rinaudo AM DCJ ORDER: 1. Application dismissed. 2. The applicant pay the costs of the respondent of and incidental to the application. CATCHWORDS: PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – MATTERS SPECIFIC TO CIVIL JURISDICTION OF DISTRICT OR COUNTY COURT – JURISDICTION – LOCALITY – where applicant submits the enforcement hearing application be dismissed for want of jurisdiction – where applicant resides in Western Australia – where money order was made in Queensland District Court PRCOEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FILING DOCUMENTS AND ACCESS THERETO – where respondent applied for enforcement hearing – where enforcement hearing was adjourned - where respondent requested enforcement hearing be relisted – where respondent filed a supporting affidavit for the enforcement hearing application – where the respondent did not file a further supporting affidavit for the relisted enforcement hearing Uniform Civil Procedure Rules 1999, r 667, r 807, r 808, r 810 COUNSEL: S Trewavas for the defendant (applicant) A Fraser for the plaintiff (respondent) (solicitor) -- 1 of 11 -- 2 SOLICITORS: Australian Law Partners for the defendant (applicant) Mills Oakley for the plaintiff (respondent) Introduction [1] The defendant, Tracy Leigh makes application to the court pursuant to r 667 of the Uniform Civil Procedure Rules 1999 (“UCPR”) for the following orders: 1. That the order of Registrar Lambert made on 2 July 2020 be set aside; 2. That until the hearing of the application the order of Registrar Lambert made on 2 July 2020 be stayed; and 3. The plaintiff pay the costs of the defendant of and incidental to the application. [2] For present purposes, the defendant, Tracy Leigh, will be referred to as the applicant and the plaintiff, Bruder Expedition Pty Ltd, will be referred to as the respondent. [3] I find the bringing of the application is competent pursuant to both r 667(1)(b) having been brought within 7 days of the making of the order of Registrar Lambert, and r 667(2)(a) having been made in the absence of a party (in this case, the applicant). [4] The order of Registrar Lambert (“the Registrar”) referred to in the application is an order made at an enforcement hearing held on 2 July 2020. This order was made on application from the respondent pursuant to r 808 of the UCPR, which is in the following terms: 808 Enforcement hearing after money order is made (1) An enforcement creditor may, without notice to another party, apply to the court, including the court as constituted by a registrar, for an enforcement hearing. (2) The application may be made only after— (a) a money order is made; and (b) the enforcement creditor has, under rule 807, required a statement of financial position to be completed and returned by the enforcement debtor in relation to whom the enforcement hearing is sought; and (c) either— (i) a completed statement of financial position has been returned to the enforcement creditor; or -- 2 of 11 -- 2 (ii) the time for returning a completed statement of financial position has expired. (3) The application must be supported by an affidavit that states the following— (a) the unpaid amount of the money order; (b) whether the enforcement creditor has received a completed statement of financial position from the enforcement debtor; (c) if the enforcement creditor has received a completed statement of financial position from the enforcement debtor, why the enforcement creditor is not satisfied with the information given in the statement. (4) The application must be made to the court in the district in which the enforcement hearing is sought. (5) No fee is payable for filing the application. (6) The registrar must set the date for the enforcement hearing and issue an enforcement hearing summons in the approved form requiring the person to whom the summons is directed to attend an enforcement hearing at the time and place stated in the summons— (a) to give information and answer questions; and (b) to produce the documents or things stated in the summons. (7) The enforcement hearing summons may require the enforcement debtor to complete and return a statement of financial position in the approved form at least 4 business days before the date of the enforcement hearing. [5] UCPR r 810 provides: 810 Location for enforcement hearing (1) If practicable, an enforcement hearing, other than an end of trial enforcement hearing, must be held in a district in which the person to whom the enforcement hearing summons is directed resides or carries on business. (2) If subrule (1) does not apply, an enforcement hearing must be held at the place where the money order was made, unless the court directs otherwise. (3) If an application for an enforcement hearing is made at a place other than where the money order was made— (a) a copy of the money order must be filed with the application; and (b) at the conclusion of the enforcement hearing, the registrar of the court at the place where the summons is issued must send to the registrar of the court where the money order was made a copy of— (i) the summons; and (ii) any documents filed in relation to the summons; and -- 3 of 11 -- 3 (iii) the record of any enforcement hearing held and a copy of any order made. History [6] The respondent obtained a money order against the applicant on 1 November 2019. [7] The respondent applied for an enforcement hearing on 3 December 2019 because the applicant had not provided a completed Statement of Financial Position (“SOFP”) within 14 days of being requested (the request was made on 14 November 2019). [8] On 13 December 2019, this court issued an enforcement hearing summons and listed the enforcement hearing for 16 January 2020. [9] On 8 January 2020, the applicant filed an application for a stay of the money order and an injunction in the Court of Appeal. The stay application was listed for hearing on 4 February 2020. [10] The enforcement hearing proceeded on the 16 January 2020 before the Registrar. Both parties were represented at the hearing. The solicitor for the applicant argued the enforcement hearing summon issued on 13 December 2019 was not validly issued by the court or properly served on the applicant. The Registrar noted she was satisfied the application for the enforcement hearing had been properly served; however, as the stay application was listed for hearing soon she adjourned the enforcement hearing pending determination of the stay application. [11] On 4 February 2020, Mullins J heard the stay application. Her Honour adjourned the stay application on two basis. Firstly, the respondent undertook not to issue a bankruptcy notice to the applicant pending determination of the appeal and injunction. Secondly, the applicant undertook to prosecute the appeal and injunction diligently. [12] A further request was sent by the respondent to the applicant on 6 February 2020 for a completed SOFP. A completed SOFP was forwarded to the respondent by the applicant on 21 February 2020. By letter, dated 26 February 2020, the respondent notified the applicant that the SOFP was inadequate as it did not include all the documents requested in the enforcement hearing summons. -- 4 of 11 -- 4 [13] On 5 March 2020, the respondent sent a letter to the applicant advising they intended to have the enforcement hearing relisted. The respondent sought relisting by the Registrar of the enforcement hearing on 12 March 2020. On 27 March 2020, the Registrar notified the respondent that due to the COVID-19 pandemic the enforcement hearing was relisted for 2 July 2020. [14] On 1 July 2020 at 5:09 pm the respondent received a copy of an unsealed application to the Court of Appeal seeking: (a) the stay application be brought back on for hearing on 2 July 2020; and (b) the enforcement hearing be adjourned until after the delivery of judgment by the Court of Appeal in respect of the appeal. [15] The application was heard on the morning of 2 July 2020. The enforcement hearing was delayed pending decision of the application. The applicant appeared at that hearing self-represented via telephone. Justice Bond AJA refused to make a stay order and further ordered that the enforcement hearing should proceed on 2 July 2020. [16] The enforcement hearing proceeded on that day at 11.30 am, approximately 45 minutes after the applicant’s stay application was dismissed. The applicant did not attend the enforcement hearing and orders were obtained in her absence. The applicant was telephoned at the time of the hearing at the request of the Registrar; however, there was no answer. [17] The Registrar ordered the applicant provide financial information as set out in the order and the enforcement hearing be adjourned to a date to be fixed. Submissions [18] The applicant submits there are three reasons to set aside order of the Registrar: 1. Firstly, the court does not have jurisdiction to entertain an enforcement hearing where the debtor is a resident of another state. The proper process is to use the courts in the state where the debtor resides;1 and 1 Submissions for the applicant at [3]. -- 5 of 11 -- 5 2. Secondly, the information sought is irrelevant and amounts to a fishing expedition.2 3. Thirdly, the orders made by the Registrar on 2 July 2020 were conditional upon the requirements of r 808(3) being complied with. The applicant contends that the respondent should have sworn a new affidavit at the time of seeking the relisting of the enforcement hearing application to reflect the fact the applicant had now provided a SOFP which the respondent considered inadequate. This is contrasted with the previous affidavit sworn for the initial listing of the application which stated no SOFP had been received. As no affidavit was provided to the Registrar pursuant to r 808(3)(c) the hearing was invalidly constituted because the Registrar had no power to relist the application for hearing.3 Jurisdiction [19] The applicant in her affidavit dated 16 July 2020 swears she resides in Western Australia.4 She also states she does not wish the enforcement proceedings to proceed before the Court of Appeal determines her appeal, and that she is impecunious in any event. [20] The respondent in their oral submissions states they have registered the money order in Western Australia where the applicant owns property both real and personal and are seeking orders for enforcement of the money debt against those assets. [21] The applicant’s submissions to the court both orally and written say the Queensland Court does not have jurisdiction to compel a resident of another state to attend an enforcement hearing and notes the court cannot make orders about property not located in this state. They submit the proper process (which in the latter case has been done by the respondent) is to use the Western Australian court process. [22] In those circumstances, the applicant submits, the enforcement hearing application should be dismissed for want of jurisdiction. 2 Submissions for the applicant at [3]. 3 Submissions for the applicant at [13]. 4 Leave given to read and file at hearing. -- 6 of 11 -- 6 Irrelevant and fishing expedition [23] The applicant submits the respondent has not complied with r 808 of the UCPR, in particular, r 808(3)(c) which provides an applicant seeking an enforcement hearing must file a supporting affidavit which, amongst other things, outlines: (i) whether the enforcement creditor has received a completed statement of financial position from the enforcement debtor; and (ii) if they have, why the enforcement creditor is not satisfied with the information given in the statement. [24] Ms Adrienne Hayley Fraser (solicitor for the respondent), in her affidavit sworn 2 December 2019, states “[a]s at the date of swearing this affidavit I have not received back the completed Statement of Financial Position”. 5 The applicant submits the SOFP was provided prior to when the respondent requested the enforcement hearing application be relisted, and that since then, the respondent has not provided any document stating why the SOFP was insufficient. Invalidly constituted hearing [25] The applicant further submits the orders of the Registrar are too wide and are a fishing exercise. It is submitted no reason has been advanced for such extensive information to be sought. [26] The respondent submits the SOFP provided by the applicant is not in accordance with the order of the Registrar (i.e. provision of three years of bank statements) and is therefore incomplete. It is submitted the applicant has only provided her most recent financial records. The respondent submits it will be severely prejudiced if the order is set aside. Discussion and decision [27] The issues for determination by me are: 1. Whether the orders of the Registrar should be set aside for want of jurisdiction as the applicant resides out of the state; 5 Court document 33 at [8]. -- 7 of 11 -- 7 2. Whether the scope of the financial investigation is too wide or ambiguous; and 3. Whether the enforcement hearing on 2 July 2020 was properly constituted. Whether the scope of the financial investigation too wide or ambiguous [28] In my view, the Registrar was in the best position to make orders in respect of what financial information was to be provided by the applicant. Her order was very specific. I note the following exchange between the respondent and the Registrar:6 MS FRASER: I mean, what we primarily want is documents. I’m not sure that an arrest warrant will best facilitate us getting those from her, and the court does have power to make other orders at an enforcement hearing. HER HONOUR: Okay. And what orders would they be? MS FRASER: I seek an order that the enforcement debtor produce, within three business days, the documents specified in the enforcement hearing summons, which, as I have just said, I can - - - HER HONOUR: Can be provided. MS FRASER: - - - particularise a bit better, just based off the information she’s included in her statement of financial position, and the limited document she’s provided, for instance, Registrar, I have the details of five bank accounts, her superannuation fund, there’s reference to a partnership, some mortgage documents. Would you be content for me to prepare a draft order specifying the documents that we’re asking for, with reference to the material that the enforcement debtor has put on thus far, for you to consider? HER HONOUR: Yes. I think that’s a sensible course of action, and would you be happy for them to be provided by email? [29] Further, the respondent gave an undertaking before Mullins J not to bring bankruptcy proceedings against the applicant. The respondent has acknowledged the applicant has concerns with providing some financial information because it might be misused by others (not party to the proceedings). The respondent has agreed all such 6 Transcript of proceedings before Judicial Registrar Lambert on 2 July 2020 at 1-3, l 33 to 1-4 l 7. -- 8 of 11 -- 8 documentation will be sealed and held by the court so as to protect it against public viewing. [30] I do not consider there any merit in the applicant’s argument in respect of this issue. The applicant clearly understands financial records must be provided dating back three years in accordance with the Registrar’s order. The applicant says such an enquiry may be appropriate on a bankruptcy notice but not here. This argument is not relevant to this application. This is not a bankruptcy proceeding. What financial information may be required in a bankruptcy is a matter for that process. It was within the Registrar’s discretion to order financial documents be provided dating back three years based on the enforcement hearing summons and the information provided in the SOFP provided by the respondent in the hearing. Whether the orders of the Registrar should be set aside for want of jurisdiction as the applicant resides out of the state [31] The legislation, in my view, is clear that an order for an enforcement hearing may be made pursuant to UCPR r 808 after a money order is made and pursuant to r 807 after the enforcement creditor has asked for a SOFP. Here, both of these preconditions have been met. [32] UCPR r 810 sets out where such an enforcement hearing is to be held. Here, the applicant (an individual) swears to living in Western Australia, which makes it impracticable to hold the hearing in a district in which the person to whom the enforcement hearing summons is directed resides or carries on business. Pursuant to UCPR schedule 3 the term district means the various districts of the Queensland District Court as set out in schedule 1 of the District Court of Queensland Regulation 2015 (Qld). In those circumstances, the rules provide the hearing be held, at the place where the money order was made. Here, the money order was made in the Queensland District Court at Brisbane on 1 November 2019. [33] It is important to note the purpose of an enforcement hearing as set out in r 803; the purpose of an enforcement hearing is to obtain information to facilitate the enforcement of a money order. [34] In this case, it seems to me, the applicant confuses the process of obtaining information, with making order for execution against property out of the state. -- 9 of 11 -- 9 Clearly, this court has no power to do the later. This is the precise reason the respondent has commenced recovery proceedings in the state in which it appears the applicant owns property (Western Australia), which may be realised in partial or full payment of the applicant’s indebtedness to the respondent pursuant the money order made 1 November 2019. Whether the enforcement hearing on 2 July 2020 was properly constituted [35] The order by the Registrar to relist the enforcement hearing for 2 July 2020 was due entirely to the actions of the applicant. The enforcement hearing was repeatedly adjourned because of the applications brought by the applicant for stay, appeal and injunction. No new application was filed by the respondent for hearing on 2 July 2020. The application filed 3 December 2019 by the respondent was the initiating document for both the enforcement hearing on 16 January and 2 July 2020. [36] By the time the enforcement hearing on 2 July occurred, the applicant had provided a SOFP. While no further supporting affidavit outlining such fact was filed by the respondent, the Registrar was informed of the received SOFP and why the respondent was not satisfied with the information provided in the SOFP, as evidenced by the following exchange:7 MS FRASER: Yes. Thank you, Registrar. Throughout the course of these proceedings, the enforcement debtor has taken issue with the scope of documents required to be produced pursuant to the enforcement hearing summons that have been issued, both versions of those. To date, we haven’t received really any meaningful documents from the enforcement debtor, despite numerous requests. The purpose of this morning’s hearing was, obviously, for us to clarify some of the things that were raised in the partially completed statement of financial position, and to request the balance of the outstanding documents, which the enforcement debtor says she has collated and is ready to email, should she be required to do so. I see the court is empowered to make orders to that effect, and I would seek that orders to that effect be made today. I would say that we could probably be a little bit more specific about what’s required to be produced per the enforcement hearing summons, because we do have details of some bank 7 Transcript of proceedings before Judicial Registrar Lambert on 2 July 2020 at 1-2 l 37 to 1-3 l 24. -- 10 of 11 -- 10 accounts and things now – and I apologise, Registrar, I didn’t have the opportunity to prepare a fresh version of the order in light of everything that happened this morning. HER HONOUR: That’s not a problem. That can be dealt with. So are you saying that you are able to – so are you saying that you really require the production of the documents in addition to the oral hearing? MS FRASER: Well, given that the enforcement debtor isn’t here now to answer questions, I suggest it would be useful if, after today, she provide those documents. We have the opportunity to consider them, and again question her based on that information. Ordinarily, I’d seek a warrant for the enforcement debtor’s arrest in the event of non-attendance at an enforcement hearing, but given that she’s in Western Australia, I don’t think that’s practical. HER HONOUR: Well, if I’m satisfied that there is no – if I’m satisfied that the enforcement debtor has failed to attend or produce without sufficient cause, it is open to the court to issue a warrant for the arrest of the debtor to lie on the Registry until further order. So as such, it wouldn’t be executed until further order is made – or application, or notice, is brought by the enforcement creditor, which might overcome some of the difficulties we have with jurisdiction, and also in terms of other issues - - - [37] This coupled with the fact the applicant failed to attend the hearing and raise any issues of irregularity in court procedure at the time, I am satisfied the substance of r 808(3)(c) was complied with. Accordingly, I find the proceedings were properly constituted. Conclusion [38] The applicant’s application should be dismissed. I order the applicant pay the costs of the respondent of and incidental to the application. -- 11 of 11 --