Commonwealth Bank of Australia v Ellis & Anor [2013] QDC 235

1 [2013] QDC 235 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE ROBIN QC No 3832 of 2012 COMMONWEALTH BANK OF AUSTRALIA Plaintiff and JOHN MICHAEL ELLIS and SHELLEY ANN ELLIS Defendants BRISBANE MONDAY, 22 JULY 2013 JUDGMENT CATCHWORDS Uniform Civil Procedure Rules r 913(2) Leave to mortgagee to serve enforcement warrant for possession where the [house] of occupation by the defendants [s ] and [children] are unclear -- 1 of 2 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: This is Commonwealth Bank of Australia v Ellis & Anor 3832 of 2012. There’s an application made by the plaintiff bank proposed to be dealt with without an oral hearing seeking leave under rule 913, sub-rule (2), to issue an enforcement warrant for possession of certain mortgaged premises. The bank has on the 12th of November 2012 obtained from the registrar default judgment against both 5 defendants for a sum in excess of $300,000, and, in addition, an order for recovery of possession of the premises against the first defendant. The plaintiff has not recovered possession, notwithstanding various time indulgences offered. This application is made in the circumstances of some confusion as to the basis on which the property is presently occupied. 10 Lawyers representing the second defendant have indicated that he and the children of him and the first defendant reside in the premises as tenants, the defendants themselves having been separated for some considerable time. The plaintiff has never consented to any tenancy. The existence of a tenancy or like arrangement, 15 however, requires that the leave of the court for issue of an enforcement warrant be obtained. So, too, does section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 play a role by requiring the plaintiff to give notice of its intention to obtain actual possession. Corresponding earlier legislation was considered in Pioneer Mortgages Limited v Uribe (2005) QDC 316. 20 It is appropriate that the order sought be made. One feature of it is that the second defendant and any other occupants of the property be made responsible for the plaintiff’s costs. Order as per initialled draft. 25 ______________________ -- 2 of 2 --