AMP Bank Limited v Onion [2017] QSC 106

SUPREME COURT OF QUEENSLAND CITATION: AMP Bank Limited v Onion [2017] QSC 106 PARTIES: AMP BANK LIMITED ACN 081 596 009 (Applicant) v MARK DOUGLAS DRURY ONION (Respondent) FILE NO/S: BS No 5640 of 2016 DIVISION: Trial Division PROCEEDING: Application for decision on the papers without oral hearing DELIVERED ON: 31 May 2017 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Thomas J ORDER: 1. The application is refused. CATCHWORDS: PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – PRACTICE – TAKING POSSESSION – where applicant sought an enforcement warrant with leave of the court – where applicant failed to include a draft warrant with the application – where the applicant’s affidavit in support of the application did not comply with the relevant provisions of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant otherwise gave adequate notice to the tenants for the taking of possession – whether the application should be granted or refused. Uniform Civil Procedure Rules 1999 (Qld) rr 906, 913, 914 Perpetual Limited v Lee [2013] QSC 006 SOLICITORS: HWL Ebsworth Lawyers for the Plaintiff [1] On 7 September 2016, AMP Limited became mortgagee in possession of a house at Gympie, by default judgment issued by the Registrar. Stacey Smith and Jodie Armstrong were tenants of the house, although they did not have a written tenancy agreement with the owner, Mark Onion. [2] On 7 October 2016, AMP sent the tenants a notice to vacate, nominating 14 December 2016 as the date by which it required vacant possession. -- 1 of 2 -- 2 [3] The tenants did not vacate the premises by 14 December 2016. Through a series of emails, AMP extended the time to vacate. At 21 April 2017, the tenants remained in possession. AMP now wants me to issue a warrant of possession. [4] If a person other than the person against whom the order is made is in occupation of the land under a tenancy agreement, an enforcement warrant may only be issued with the court’s leave.1 [5] An application for an enforcement warrant must attach the warrant the person wants to issue.2 Although AMP’s submissions refer to a draft warrant, I cannot see that the application has that draft attached. The purpose of attaching the draft warrant is to inform the tenants accurately of the proposed action. [6] A person applying for an enforcement warrant must file an affidavit stating whether, to the best of the person’s knowledge, a person other than the person liable under the order is in occupation of the land under a lease or tenancy agreement.3 That affidavit must be made no earlier than 2 business days before the date of the application.4 In this case, the affidavit was filed on 9 May 2017. The date for the application to be decided was 19 May 2017. The affidavit did not comply. [7] The absence of the draft, and the failure to provide a timely affidavit as to whether there is anyone in occupation of the premises are, in my view, defects that prevent me issuing the requested warrant.5 [8] The application is refused. 1 Uniform Civil Procedure Rules 1999 (Qld), r 913(2). 2 Ibid, r 906(1)(a) 3 Ibid r 914(1)(a). 4 Ibid r 914(3). 5 See, for example, Peter Lyons J in Perpetual Limited v Lee [2013] QSC 6. -- 2 of 2 --