Commonwealth Bank of Australia v Morrisby [2013] QDC 107

DISTRICT COURT OF QUEENSLAND CITATION: Commonwealth Bank of Australia ABN 48123123124 v Morrisby [2013] QDC 107 PARTIES: COMMONWEALTH BANK OF AUSTRALIA ABN 48123123124 (plaintiff/applicant) V IAN MICHAEL MORRISBY (defendant/respondent) FILE NO/S: 3720/2012 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 16 April 2013 DELIVERED AT: Brisbane JUDGE: Horneman-Wren SC DCJ ORDER: 1. Application is dismissed. CATCHWORDS: PROCEDURE – UNIFORM CIVIL PROCEDURE RULES – where default judgement made in favour of the plaintiff – where the plaintiff sough an order for possession of the property – where the plaintiff applied for the application to be decided without an oral hearing – where no draft order was served on the defendant – where draft orders and application inconsistent – where application heard before 10 days had passed after the application was expected to be served on the defendant – whether procedure had been complied with – whether the application could be heard without an oral hearing Uniform Civil Procedure Rules 1999, r 371(1), r 489(1), r 490(1), r 490(2), r 913(2), r 915. Acts Interpretation Act 1954, s 39A(1)(b) Lhoe v Tait [2002] QSC 399 [1] On 15 January 2013 the applicant obtained a default judgment against the respondent. The judgment was for the sum of $295,191.96 and for recovery of -- 1 of 8 -- 2 possession of property situated at 6 Thurso Court, Boronia Heights, Queensland (the property). [2] The applicant seeks to have issued an enforcement warrant for possession of the property under rule 915 of the Uniform Civil Procedure Rules 1999. Rule 913(2) of the UCPR provides that an enforcement warrant may be issued only with the leave of the court if a person other than the person against whom the order for possession is made is in occupation of the land under a lease or tenancy agreement. [3] From the material filed on the application it seems that leave may be required. I say may be required because whilst it is clear that persons other than the respondent occupy the property, who those persons are, and the basis upon which they occupy, is unclear. [4] Enquiries conducted by a firm of investigators, process servers and licenced commercial agents (the commercial agents) on behalf of the applicant on 14 October 2012 revealed that one Leanne Hicks occupied the premises at that time. The commercial agents were informed by Ms Hicks that she maintained the property in lieu of rent and that she had, at that time, lived at the property for approximately two years.1 It is apparent that Ms Hicks was still (or again) an occupant of the property on 7 April 2013.2 [5] On 24 October 2012 the respondent informed the commercial agents that squatters were living at the property and that he had no way to get them out.3 1 Affidavit of Mathew Keith Harmon filed 4 April 2013, Para 8 (a) and (b). 2 Affidavit of service of David Matthew Williams filed 16 April 2013, Paras 1 & 2. 3 Affidavit of Mathew Keith Harmon filed 4 April 2013, Para 8 (c). -- 2 of 8 -- 3 [6] On 26 November 2012 the commercial agents were informed by a Chloe Taylor that she and her mother rented the property privately from the respondent.4 [7] On 8 March 2013 the commercial agents were informed by a neighbour at the property that the respondent had returned to live in the property, but that he was away at that time.5 [8] On 14 March 2013 the commercial agents were again told by a neighbour that the respondent had returned to live at the property.6 [9] In its application, the applicant proposed that the application be decided without an oral hearing.7 Rule 490(1) requires that in those circumstances the application must include a notice in the approved form and must be accompanied by a draft order and written submissions in support. The applicant has complied with those procedural requirements in so far as those documents were filed with the application. However, it is apparent from the affidavits of service that whilst the written submissions were served, no draft order was. [10] In Lohe v Tait,8 Margaret Wilson J observed in respect of the processes for determining applications on the papers under Chapter 13 Part 6 of the UCPR: Because of the potential interference with the principle of procedural fairness that a litigant is entitled to know the case against him or her and to be heard before a determination is made, there are detailed and mandatory steps to be taken if this process to invoked (sic). Such an application and supporting affidavits must be filed and served in accordance with chapter 2 part 4 of the UCPR. The application must be in the approved form and accompanied by a draft order and written submissions in support: r 490 of the UCPR. The draft order 4 Affidavit of Mathew Keith Harmon filed 4 April 2013, Para 9 & 10. 5 Ibid at para 12. 6 Ibid at para 14. 7 Rule 489 (1) UCPR. 8 [2002] QSC 399 at [5]. -- 3 of 8 -- 4 and written submissions should be served with the application and affidavit material. [11] In that case, the applicant seeking to have the matter determined without an oral hearing had filed, but not served, the supporting affidavit. A draft order had been neither filed nor served. Her Honour found that the application for a decision on the papers must fail because mandatory requirements for service had not been met.9 [12] The orders for which the applicant was said to be applying in this matter are set out in the body of the application. But that ought not, I my view, excuse the applicant from the requirement to serve a draft order. [13] Rule 31(2) requires an application to be in the approved form. Form 9 requires the application to give notice of the orders for which the applicant is applying by setting them out in the application. [14] The approved form of notice for a proposal that an application be determined with out an oral hearing is in Form 49. The application must otherwise comply with Form 9; including the requirement to set out the orders sought. [15] Notwithstanding that the order sought must be included in the body of the application itself; Form 49 requires notice to be given that „an order in terms of the accompanying draft is sought‟. Form 49 also requires that notice be given that „the material and submissions in support of the application provided‟. 9 Lohe v Tait [2002] QSC 399 at [9]. -- 4 of 8 -- 5 [16] From this it can be seen that the requirement under s 490(1)(b) that the application must be accompanied by a draft order and written submissions and support requires those documents to be served, as well as filed. [17] In my view, the failure of the applicant to serve a copy of the draft order on either the respondent or those persons referred to in the application as the “Respondent Occupant(s)” ought not be considered as a mere procedural irregularity.10 Order 2 of the draft order concerning costs is in different terms to order 2 set out on the face of the application. In the application costs are sought against the Defendant and “the Respondent Occupant(s)”. In the draft order, however, the costs are sought against the Defedant and “the Respondent Occupant(s)/Tenant(s)”. [18] The material does not otherwise identify who are the “Respondent Occupant(s)” or the “Respondent Tenant(s)”. Nor does the material disclose the basis for the distinction although it might be assumed that it recognises that persons may occupy the property although not under a tenancy. [19] It is apparent from the reports of the commercial agents as referred to in Mr Harmon‟s affidavit filed on 4 April 2013 to which I have referred above that there may be persons who are occupants of the property who may not be tenants. The covering letter dated 5 April 2013 under which service was to be affected was addressed to “The Tenant(s)/Occupant(s) 6 Thurso Court, Boronia Heights, Queensland 4124”.11 A person to whose attention that letter was drawn who was a tenant of the property may consider that, due to the terms of the application for costs 10 Rule 371(1) UCPR. 11 Exhibit MKH 2 to the affidavit of Mr Harmon filed 16 April 2013. -- 5 of 8 -- 6 being restricted to occupants, that no costs order was being sought against him or her. [20] Such a (mis)understanding might be compounded by virtue of the fact that the only person upon whom personal service was effected was Ms Hicks. According to the affidavit of service of David Matthew Williams filed 16 April 2013, Ms Hicks answered in the affirmative when asked in word to the effect „Are you The Tenant(s)/Occupant(s) named in this matter?‟.12 [21] Some other occupant of the property, informed of this, may understand the application for costs to be restricted to the respondent and Ms Hicks. Ms Hicks, it is to be recalled, had informed the commercial agent back in October 2012 that she maintained the property in lieu of rent. She may thus have been an occupant, but may not have been a tenant. [22] A true tenant of the property to whose attention the letter on accompanying material came may well have concluded that although the letter was addressed to the tenants and the occupants, the application for costs was restricted to the occupants and did not extend to him or her as a tenant. In this regard it is to be recalled that in November 2012 Ms Taylor informed the commercial agent that she and her mother rented the property from the respondent. [23] Given this level of uncertainty, I cannot be satisfied that the intended purpose of the notice required under rule 490(1) of the UCPR has been achieved. [24] For this reason, the application should be dismissed. -- 6 of 8 -- 7 [25] There is a further reason why the application should be dismissed. [26] Rule 490(2) requires the registrar to set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent. [27] The application was filed on 4 April 2013. The date for deciding the application was set at 16 April 2013. The material does not reveal what, if anything, the registrar was told about the expected date of service when setting that date. [28] In the event, however, the application was served upon the respondent and upon “The Tenant(s)/Occupant(s)” by post. The documents were posted on Friday 5 April 2013 by express post. Service would thus be taken to have been effected on the next business day,13 namely Monday 8 April 2013. [29] The application was served on Ms Hicks on Sunday 7 April 2013. [30] In each instance, service has been effected less than 10 days before date set for deciding the application. As observed by Wilson J in Lohe v Tait, the processes prescribed by rule 490 of the UCPR are intended to ensure that procedural fairness is accorded to respondents to applications which are proposed to be determined without an oral hearing. [31] The failure to provide the time prescribed between service of the application and its determination interferes with a respondent‟s right to procedural fairness in the terms prescribed by Chapter 13 Part 6 of the UCPR. This failure, particularly when taken 12 Affidavit of Service of David Matthew Williams filed 16 April 2013 para 2. 13 Section 39A(1)(b) Act Interpretation Act 1954. -- 7 of 8 -- 8 with the other procedural deficiencies, should in this case result in the application being dismissed. [32] The application is dismissed. -- 8 of 8 --