Farrow Mortgage Service Pty Ltd v Edgeflex Pty Ltd [1992] QSC 149

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State ReJX>rting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SHEPHERDSON J No 1923 of 1990 FARROW MORTGAGE SERVICE PTY LTD Plaintiff and EDGEFLEX PTY LTD Defendant BRISBANE .. DATE 13/4/92 JUDGMENT 1 -- 1 of 5 -- _) 130492 JUDGMENT HIS HONOUR: I have decided to deliver these extempore reasons for the judgment which I am about to give. This action commenced with the issue of a specially endorsed writ in which the plaintiff as mortgagee claimed from the defendant as mortgagor delivery up of possession of land described as Lot 14 on Registered Plan No 226465, County of 10 Stanley, Parish of Yeerongpilly, containing an area of 1,000 square metres and being the whole of the land described in Certificate of Title Volume 7361, Folio 129. The matter came for trial this morning and, as will appear from an earlier ruling, I refused an application by the defendant's solicitor for an adjournment and then granted the defendant's. solicitors leave to withdraw and made an order under 0 14 r 3. The defendant's name was called .. " 20 outside the Court and there was no appearance. I should add 30 that, as I mentioned in the reasons for refusing the adjournment, I was satisfied that the defendant knew the matter was coming on for trial this morning, and further that its solicitors would be applying for leave to withdraw. 40 Mr Fraser for the plaintiff has sought judgment under Order a.nfl 32 on h' - .. :l.S client's ·claim and '··: .:t.n respect. of a c<Dunt-ercJaim ~.vhich the defendant. has. After the hearing commenced, Mr Fraser tendered an a:L;tended writ which had been filed on 26 February 1991. The writ was 50 amended pursuant to an order of Senior Master Horton QC dated 26 February 1991. The only alteration made v;-;;,s to amend the statement of claim seeking recovery of possession of the land instead of delivery up of possession. Mr Fraser 60 2 () n () -- 2 of 5 -- ( 130492 JUDGMENT informed me that this course had been followed after the decision in Metropolitan Permanent Building Society v. McClymont (1983) 1 QdR 160. The facts relied on in the amended statement of claim have all been proved. The plaintiff's incorporation and the fact 10 of the defendant being the registered proprietor of the mortgaged land, the description of which I have earlier set out, were admitted in the defendant's pleading. Exhibit 1, which is a certified copy of the relevant Certificate of ( Title and the bill of mortgage on which the plaintiff 20 relies, was proved by the certified copy of the bill of mortgage and also a facsimile of a letter dated 8 April 1992 (~' \ · from the defendant's then solicitors to the plaintiff's solicitors. That facsimile letter is Exhibit 3 and it shows that the defendant admitted "that a bill of mortgage had 30 been executed by Edgeflex Pty Ltd in favour of Farrow Mortgage Services Pty Ltd." This admission does not identify the bill of mortgage by number. ( However, I consider I am entitled to look at the pleadings 40 in this matter and it is apparent that there is only one bill of mortgage between the parties which is the subject of the litigation, and I infer that the bill of·mortgage, execution of which has been admitted in Exhibit 3, is indeed bill of mortgage No K234862G, a certified copy of which 50 forms part of Exhibit 1. As to the covenants in the bill of mortgage, these are set out :i_n the document-:·±tself and also in Exhibit 5 which is a 60 -- 3 of 5 -- 130492 JUDGMENT certified copy of a standard form bill of mortgage used by. 1' the plaintiff and registered in the Office of Freehold Land Titles at Brisbane. I should say that the certified copies of the documents forming Exhibits 1 and 5 are admissible under s 122 of the Real Property Act; 1861 ·. as amended. As to default, Exhibit 4 contains a copy of the notice of default in Form 7 dated 28 August 1990 and referred to in paragraph 8 of the statement of claim of the amended writ. Proof 6f the plaintiff's claim is reinforced by the following admissions in Exhibit 3: "(b) that Epgeflex Pty Ltd has not met payment of principal and interest pursuant to the bill of mortgage; (c) that Edgeflex Pty Ltd has received a Form 7 notice in relation to non-payment of principal and/or interest under the bill of mortgage; {d) that Edgeflex Pty Ltd has not remedied the default referred to in the Form 7 notice." Again, because there is only the one bill of mortgage between the parties forming part of the·litigation, I infer that the Form 7 notice referred to in those admissions is indeed the Form 7 notice, a copy of which is Exhibit 4. Finally, Exhibit 3 contains an admission that the defendant, as at 8 April 1992, remains in possession of the property secured by the mortgage. On the evidence I am well satisfied that the plaintiff is entitled-to recover possession of the land which I have earlier described. I should, in fairness to Mr Crowther the former solicitor for the defendant, say that he did ask me if I were prepared to grant judgment to the plaintiff to, in 4 10 30 40 50 60 oi () -- 4 of 5 -- 130492 JUDGMENT issue of any writ of execution. I did indicate to him that if I were to grant judgment I was prepared to do that. I am satisfied from the authorities that because the plaintiff seeks recovery of possession and not delivery of possession I have no power to order that possession be deferred to some future date, but I do have power to stay the issue of the 10 writ of possession (Martinez v. Rowland (1983) 1 QdR 496). In the circumstances then, I give judgment for the plaintiff against the defendant in the action. I order that the ( plaintiff do recover possession of all that parcel of land 20 described asthefee simple in Lot 14 on Registered Plan 226465, County of Stanley, Parish of Yeerongpilly, ( containing 1,000 square metres being the whole of the land described as Certificate of TitleVolume ~361, Folio 129. 30 I dismiss the defendant's counterclaim and I give judgment for the plaintiff against the defendant on that ( counterclaim. I order the defendant to pay th~ plaintiff's . ; . costs of and incidental to the action in6ludirig reserved cos~s (if ·any) and its costs in respect of the defendan~'s 40 l countercJ.aim ~o he taxed. I further order that execution of the order for recovery of possession be stayed until midnight on 11 May 1992. 50 60 5 -- 5 of 5 --