ANZ Banking Group Ltd v Pfeiffer [2001] QSC 98

State Reporting Bureau Transcript of Proceedings Copyright :in this -transcript ~s vested in the Crown. Cop•es thereoi must not be made or so1d without the written authority oi the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION de JERSEY CJ No 10362 of 2000 AUSTRALIA AND NEW ZEAL.AND BANKING GROUP LIMITED (ACN 005 357 522) and SANDRA LOUTSE PFEIFFER ./ BRISBANE J .. DATE 21/03/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date o2 </{/ ~ o I Applicant/Plaintiff Respondent/Defendant ,c. .; ,,. .. t~.f >:· /,.·',/ 'floor, The Law Courts, Geof38 Street, Bdsbane, 0. 4000 Te,epnone: (07) 3247 4360 Fax: (07} 3247 5532 1 -- 1 of 4 -- 21032001 Tl/PAF23 M/T 1/2001 (de Jersey CJ) HIS HONOUR: This is an application brought by the applicant/plaintiff for leave for the issue of an enforcement warrant. The application is brought pursuant to rule 913, subrule 2 of the Uniform Civil Procedure Rules. It arises from an order for recovery of possession in the plaintiff's favour which was made on 9 January 2001. That order followed breaches of a mortgage granted by the owner of Lot 2 on Registered Plan 52058, a mortgage in favour of the plaintiff as first registered mortgagee of the property. The respondent before me today is Mr Marshall who resides at the property. Rule 913, subrule 2 is rendered applicable by uncontradicted evidence before me that there is a written tenancy agreement concerning the respondent's occupation of the property. That evidence may be slight, but it is there, and it is sufficient in the absence of sworn contradiction to enliven rule 913, subrule 2. 1 10 30 The matter bas come before the Court on previous occasions. 40 .,r On 2 February this year the respondent secured the adjournment of the application until 2 March on the basis of a contract to sell the property with one Vanderwall. The matter came before the Court again on 2 March by which time the Vanderwall contract had allegedly become unconditional. SC The respondent then appeared. The application was adjourned for a further seven days to 9 1 March to allow for stamping of the contract and the obtaining of legal advice. 6( 2 JUDGMENT -- 2 of 4 -- 21032001 Tl/PAF23 M/T 1/2001 (de Jersey CJ) On 9 March the matter was further adjourned until today on the basis of an agreement between the parties which was reflected in Exhibit MAGS, a document signed by the present respondent, in these terms: "I, Terry Marshall, confirm that I represent Sandra Pfeiffer in relation to the sale of the property at 1033 Ann Street, Fortitude Valley. The sale by Pfeiffer of the property to Rafe Vanderwall for $700,000 is unconditional at 8 March 2001 and is scheduled to settle at Brisbane on 16 March or at the latest by 20 March 2001. I consent to the application for possession of the property for or on behalf of ANZ Bank being adjourned to 21 March 2001 on the basis that if the contract of sale has not been settled vacant possession of the property will be given up without delay and I will consent and do consent to an order being made by the Supreme Court for leave to issue an enforcement warrant for possession and the issuing of that warrant." The material before me shows that the respondent has now informed the plaintiff that the contract with Mr Vanderwall will not be settling. There is suggestion of a further 1 10 20 30 contract to settle on 2 April 2001. There is, however, no 40 evidence before me which would persuade me that any such contract will proceed to completion. The only evidence J which has been put before me by the respondent, and that at this hearing this morning with the consent of - without objection - really with the consent of the plaintiff, is Exhibit 1, which is far from establishing that matter. The respondent sought to make factual assertions from the Bar Table bearing on this issue. Mr Perkins, who appeared for the plaintiff, objected to his doing that and of course 3 JUDGMENT so 60 -- 3 of 4 -- 21032001 Tl/PAF23 M/T 1/2001 (de Jersey CJ) the objection was upheld, as it must have been. The respondent in the end asked for an opportunity to bring evidence before the Court from various people bearing on the 1 prospect of a sale proceeding to completion on 2 April. He 10 in effect was seeking a further adjournment for that purpose. I consider, having regard to the history of the matter and, in particular, the basis upon which the matter was adjourned on 9 March 2001, being the matter extracted earlier in this judgment from the document then signed by the respondent, that it would be quite unjust to delay further the plaintiff's execution upon the judgment which was granted in its favour on 9 January 2001. As it was put, I think reasonably, in the submissions for the applicant: 30 "Given the history of delay of the matter and the myriad of unconsummated proposals for the bank debt to be paid,out, the application ought to be granted. The owner and the respondent have put up six separate proposals non~ of which have come to pass. It is a 4Q reasonable irlference that these proposals are made for the purpose of delay only. No further proposal should result in further adjournment of this application." HIS HONOUR: Order as per draft. There will be an order that the respondents pay the ,pplicant's costs of and incidental to the application to be assessed. 4 JUDGMENT 50 6C -- 4 of 4 --