ABC Brick Sales Pty Ltd v Kennedy [2014] QDC 195

1 [2014] QDC 195 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE RACKEMANN No 1099 of 2014 ABC BRICK SALES PTY LTD Plaintiff and SHANE GRAHAM KENNEDY Defendant BRISBANE 3.41 PM, WEDNESDAY, 3 SEPTEMBER 2014 JUDGMENT CATCHWORDS: CIVIL PROCEDURE – Judgment in default – claim for debt, a declaration that the moneys are charged over real property, and for orders for sale – whether s 38 of the Property Law Act is engaged – whether encumbrancee is a co-owner – power to order a sale pursuant to s 99(2) of the Property Law Act COUNSEL: SOLICITORS: B Le (Solicitor, Patane Lawyers) for the applicant plaintiff No appearance for the respondent defendant Patane Lawyers for the applicant plaintiff . -- 1 of 3 -- 2 JUDGMENT HIS HONOUR: In this proceeding the plaintiff, by its claim, sought various relief which included a claim for moneys owing as a debt, for a declaration that the debt, together with interest and legal costs, is secured by an equitable charge over certain real property and for an order that that charge be enforced by sale of the premises. The defendant is in default by failing to file a notice of intention to the defence. The 5 application before the court today is one for judgment in default. The principal matter which was the subject of some discussion in the course of consideration of the application was the application for orders to effect a sale of the property and to appoint a trustee for that purpose. Such relief was sought pursuant to 10 section 38 of the Property Law Act or alternatively pursuant to section 99(2) of the Property Law Act 1974 (to order a sale) and r 278 of the UCPR (for the appointment of a trustee to conduct the sales). Pursuant to section 68 of the District Court Act, this Court has jurisdiction in relation 15 to an action or a matter for the sale or petition or division of property pursuant to section 38 of the Property Law Act where the property does not exceed the value or amount that of monetary limit. Section 38 of the Property Law Act, however, is concerned with a statutory trust for sale or partition of property held in co-ownership. In this case, the property in question has only one registered proprietor. 20 It was initially submitted that there was a co-ownership by reference to the charge. In that regard, reference was made to the definition, in section 37 of the Property Law Act, of co-owner as including 25 an encumbrancee of the interest of a joint tenant or tenant in common. In this case, the encumbrance is not an encumbrance of an interest of a joint tenant or tenant in common. The Plaintiff is an encumbrancee of a property held in a single name. 30 It may be noted that co-ownership is defined to mean: ownership whether at law or in equity in possession by 2 or more persons as joint tenants or as tenants in common. 35 It was not suggested that the encumbrancee in this case could be described appropriately as a joint tenant or as a tenant in common. Accordingly, section 38 appears to be inapposite. The application for orders under 40 that section was ultimately not pressed. I am satisfied that section 99 of the Property Law Act is sufficiently broad to permit the court to make an order for sale in a case where there is an unregistered charge against the property. 45 The section refers to mortgage property, that term is defined to include: …the estate or interest which a mortgagee would have had power to convey if the statutory power of sale were applicable. 50 -- 2 of 3 -- 3 JUDGMENT In relation to the expression “mortgage”, the Property Law Act defines “mortgage” as: …including a charge on any property for securing money or money’s worth. 5 The same definition appears in the Acts Interpretation Act at section 36. Similarly, the term is defined in the Land Title Act 1994 as: …including a charge on a lot or an interest in a lot for securing money or money’s worth. 10 As to cases where section 99(2) has been invoked, see, for example, Worrell v Issitch [2001] 1 Qd R 570. The question is whether an order for the sale of the property pursuant to section 99 15 can be made by the District Court. Section 68 of the District Court Act does not provide an express basis for such an order. The solicitor for the applicant referred to section 69, which gives the District Court all the powers and authorities of the Supreme Court, including the powers and authorities conferred on the Supreme Court by an Act. The relevant power in section 99 is one which is conferred on the 20 Supreme Court by an Act and so is caught by those words. Section 69 does not, however, operate independently of section 68. The introductory words make it clear that if the District Court is to exercise a power of the kind referred to in section 69, it must be 25 For the purposes of exercising the jurisdiction conferred by this part. Accordingly, the District Court cannot, for example, consider a “free standing” application to remove a caveat, although it could exercise the power to remove a 30 caveat if it was doing so for the purposes of exercising the jurisdiction otherwise conferred (see CAV Queensland Pty Ltd v Rick Shaw [2001] QDC 104). In this case, the jurisdiction of this court has been invoked pursuant to section 68 in relation to a claim for moneys owed and for a declaration that the moneys so owed 35 are the subject of the charge over the property in question. I am satisfied that, in those circumstances, the exercise of the power to order a sale has a sufficient nexus with the matters falling within the jurisdiction under section 68 such that it can be said that the power is being exercised for the purposes of exercising the jurisdiction conferred. Accordingly I am prepared to make the order. 40 ______________________ -- 3 of 3 --