Bank of Queensland v Blackwell [2013] QSC 5

SUPREME COURT OF QUEENSLAND CITATION: Bank of Queensland v Blackwell [2013] QSC 5 PARTIES: BANK OF QUEENSLAND LTD (applicant) v BLACKWELL (respondent) FILE NO/S: BS8532 of 2011 DIVISION: Trial PROCEEDING: Application for decision on the papers without an oral hearing DELIVERED ON: 29 January 2013 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Peter Lyons J ORDER: 1. Application dismissed 2. I direct that any further application for an enforcement warrant in respect of the properties referred to in the judgment dated 28 May 2012 be made by an application to be heard orally. CATCHWORDS: PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – PRACTICE – APPLICATION AND TIME OF ISSUE – where plaintiff obtained default judgment against the defendant on 28 May 2012 – where plaintiff seeks leave on the papers for the issue of an enforcement warrant against any occupants of the land – where person against whom order was made is not the occupant of the land – where application did not attach a copy of the enforcement warrant being sought – where application did not demonstrate proof of service of the application on the defendant – where application did not provide information in relation to the occupation of either property since July 2012 – whether leave should be granted for the issue of an enforcement warrant against any occupants of the land Uniform Civil Procedure Rules 1999 (Qld) r 906, r 913, r -- 1 of 4 -- 2 914, r 915 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 317 R v Wandsworth County Court [1975] 1 WLR 1314 SOLICITORS: HWL Ebsworth Lawyers for the Plaintiff [1] Peter Lyons J: On 28 May 2012 the plaintiff obtained a default judgment against the defendants, including an order that it recover possession of two properties located at 6 Moran Street, Bundaberg. It has applied for leave under r 913(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for the issue of an enforcement warrant against any occupants of the land; and enforcement warrants for possession of each of the properties, under r 915; as well as an order that the defendant’s pay its costs. It has proposed that be decided on the papers without an oral hearing, Background [2] The plaintiff’s action is a mortgagee’s action in debt, and for recovery of possession of the two properties. As has been mentioned, it obtained a default judgment on 28 May 2012. [3] In July 2012 the plaintiff’s solicitors instructed an entity named POLO CPI to ascertain the occupancy of the properties. Its report of the same date stated, in respect of one property, that Tszyiu Ho was in occupation; and that, in respect of the other, Lam Kai Man Benny was in occupation. [4] On 8 October 2012, letters were sent, addressed to “The Occupant/Tenant” of each property enclosing a document in Form 19 under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“RTRAA”), requiring the person to whom the notice was addressed to vacate the property by 12 December 2012. [5] An affidavit in support of the application was sworn by an employee of the plaintiff’s solicitors. In deposes to the fact that on 18 January 2013 he was advised by an employee of the plaintiff who had access to the plaintiff’s financial records, that to the best of that employee’s knowledge, it cannot be ascertained if tenants still reside in either property. UCPR provisions for enforcement for an order for possession of land [6] An order for the possession of land may be enforced by an enforcement warrant under r 915 of the UCPR1. Rule 906 provides that a person applying for an enforcement warrant to enforce an order must file an application attaching the warrant the person wants the Court to issue; and an affidavit stating that the person against whom the enforcement is sought was served with the order, and that there has not been compliance with the order. The rule also requires the filing of a copy of the enforcement warrant2. 1 See r 896 of the UCPR. 2 See r 906(3). -- 2 of 4 -- 3 [7] Rule 913(1) requires, subject to any different order by the Court, that the person against who the order is to be enforced is to be served with a copy of the order, at least seven days before the warrant is issued. Further, r 913(2) requires the leave of the court, if a person, other than the person against who the order is made, is in occupation of the land under a lease or a tenancy agreement. Rule 914(1)(a) requires that a person applying for an enforcement warrant for possession of land must file an affidavit stating whether, to the best of the applicant’s knowledge, a person other than the person liable under the order is in occupation of the land under a lease or tenancy agreement. That affidavit must be made not earlier than two business days before the date of the application3. The affidavit must also depose to service of the order for possession on the person against whom it is to be enforced4. [8] It might also be observed that a person entitled to enforce a non-money order may apply for an enforcement warrant without notice to any other party5. Difficulties with the application [9] The applicant did not attach a copy of the enforcement warrant which it sought, to the application; nor was a copy filed. The standard form of enforcement warrant for possession of land is Form 85. It records the entitlement of the person applying for the warrant to recover possession of the land; and directs the enforcement officer “to enter upon that land, and deliver possession of the land and appurtenances to …” the person entitled to possession of the land. At least in the United Kingdom, a warrant in that form requires the enforcement officer to evict any person found on the premises, whether a party to the judgment or not6. That the warrant has that effect may, in part, explain the requirement for leave found in r 913(2). [10] Section 317 of the RTRAA requires a mortgagee seeking to enforce a right to possession of premises which are residential premises under the Act, to give any tenant two months notice, before obtaining possession. The affidavit filed in support of the application was sworn by a “Legal Executive”, an expression with which I am not familiar. The affidavit does not depose to facts from which it could be determined whether either property was residential premises. That, however, seems likely, in view of the letters sent by the plaintiff’s solicitors on about 8 October 2012. The provisions of s 317, in such a case, make it necessary to consider with some care the affidavit filed on behalf of the applicant, for the purpose of complying with r 914(1)(a). [11] Rule 490 requires that, when an applicant proposes that an application be decided without an oral hearing, the application must be accompanied by a written submission. The submissions provided in the present case were somewhat perfunctory. They did not, for example, deal with the provisions of r 906(1)(a). However, there are more fundamental difficulties with the application. [12] The affidavit in support of the application relies, for proof of service of the orders sought to be enforced, on a letter dated 31 July 2012 addressed to Ms Blackwell at a post office box at Lutwyche. No evidence is provided, nor submission advanced, to 3 See r 914(3). 4 See r 914(1)(b) and r 913(1). 5 See r 906(2). 6 R v Wandsworth County Court [1975] 1 WLR 1314. -- 3 of 4 -- 4 establish how this might demonstrate service of the order on Mr Blackwell7. Nor did the evidence or submissions seek properly to demonstrate that the letter constituted effective service of the order on Ms Blackwell. It seems to me that, on the material, the application should be refused. [13] No information is provided in relation to the occupation of either property since July 2012. On the basis that an enforcement warrant permits the eviction of persons who were not parties to the action, the question of occupation of the land in respect of which the warrant is sought is a question of some importance. It is of particular importance where s 317 of the RTRAA applies. Rule 914(3), in my view, support the view that the evidence pointing to the current state of occupation of the land should, so far as possible, be provided. In my view, in the present case, the evidence of the state of knowledge of the plaintiff’s employee on 18 January 2013 is inadequate. For this reason, I would not be prepared to grant leave under r 913(2). [14] Rule 913(1) requires, as has been mentioned, that the orders sought to be enforced be served on the person against whom it is to be enforced, at least seven days before the warrant is issued, unless the court otherwise orders. In the event that it is intended the warrant be enforced against persons other than the defendants, it would have been of assistance to have had submissions on the question whether that requires service of the order against any person in occupation of either property; and on the question whether, if service has not been effected, the warrant might nevertheless be enforced. Needless to say, this question was not adverted to in the submissions filed with the application. [15] I gave consideration to seeking further information under r 497. However, in view of the fundamental difficulties with the application, it seems more appropriate to dispose of it. [16] I consider that an application of this nature should not be made by way of an application for a decision on the papers without an oral hearing, unless materials lodged in support of the application are the subject of careful consideration by a properly qualified and competent lawyer. The material relied upon by the applicant rather strongly suggests that that did not occur in the present case. I therefore propose to direct that any further application relating to an enforcement warrant for the possession of the properties in the present action be made by an application to be heard orally. Conclusion [17] The application is dismissed. I direct that any further application for an enforcement warrant in respect of the properties referred to in the judgment dated 28 May 2012 be made by an application to be heard orally. 7 The letter was marked “Without Prejudice”, it would seem in error, because the letter does not appear to be intended to achieve any compromise. -- 4 of 4 --