Bunnings Building Supplies Pty Ltd v Blue Diamond Homes Pty Ltd & Anor [2004] QSC 54

1 [2004] QSC 054 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J No S2586 of 2003 BUNNINGS BUILDING SUPPLIES PTY LTD ACN 008 672 179 and BBC HARDWARE LIMITED ACN 000 003 378 Plaintiffs and BLUE DIAMOND HOMES PTY LTD ACN 096 773 509 First Defendant and BRETT RAYMOND HOLT Second Defendant BRISBANE ..DATE 23/03/2004 ORDER WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 4 -- 23032004 T10/VC2 M/T 1-2/2004 (Fryberg J) 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an application for summary judgment. The applicant is a hardware company. The second defendant, the respondent to the application, is the guarantor of the first defendant. He entered into an agreement with the plaintiff, a term of which was as follows: "7 - The guarantor charges as beneficial owner and trustee of every trust all the guarantor's land (including land acquired in the future) in favour of Bunnings to secure the payment of the moneys and the performance and observance of the guarantor's covenance under this deed. In this clause trust means each trust for which the guarantor holds land as trustee." The respondent holds four parcels of land as a trustee. There is no suggestion that in making the agreement to which I have referred the respondent in any way breached the terms of the trusts, far less that the applicant was aware of any breach. The applicant seeks orders that there by a declaration that the land is charged with the amount of the judgment debt and that the land be sold with consequential orders. The order for sale that is sought is said to be sought pursuant to section 99 of the Property Law Act. Subsection (1) of that section does not apply to the case. It covers only persons entitled to redeem property and provides that such a person may have a judgment or order for sale instead of for redemption in an action. Subsection (2) provides that in any action, whether for foreclosure or for redemption or for sale or for the raising and payment in any manner of mortgage money, the Court may -- 2 of 4 -- 23032004 T10/VC2 M/T 1-2/2004 (Fryberg J) 3 ORDER 1 10 20 30 40 50 60 direct a sale of the mortgage property on such terms as the Court thinks fit. On behalf of the applicant Mr Groben submitted that the case fell within that section. It may do but I would not wish to decide that it does without hearing full argument on the matter in a contested case. This case has proceeded in the absence of the respondent. It seems to me on the face of things that section 99(2) may be construed as referring to an action where the sale that is the subject of the action is the sale that is referred to in subsection (1). I am not persuaded that the section covers the case. Mr Groben cited in support of the application decisions of Justice White in EA & S Plaster Co Pty Ltd v. Registrar of Titles [2000] QSC 14, Worrell v. Issitch [2001] 1 QdR 570, BBC Hardware Limited v. G T Homes Pty Ltd [1997] 1 QdR 123 and Phillips v. Hogg [2001] QSC 390. The precise point does not seem to have been addressed in the first of those cases. It was a case about an equitable mortgage and the power that is the subject of my concern was not addressed in it. The point does seem to have been thought of in Worrell v. Issitch but Justice Holmes who decided that case does not, as I read her judgment, conclusively decide whether the terms of section 99(2) are wide enough to cover this case. -- 3 of 4 -- 23032004 T10/VC2 M/T 1-2/2004 (Fryberg J) 4 ORDER 1 10 20 30 40 50 60 Although paragraph 9 of her judgment states her satisfaction that that section is sufficiently wide to empower sale of the property, the subject of a charge created by the Federal Court, she concludes the paragraph "In any event the power to order sale exists under the general law." The question was assumed by Justice Thomas in the third of the cases cited and does not seem to have central to the decision in the fourth of those cases. I do not see any need to decide the point in this case. The power of the Court in its inherent jurisdiction in equity is quite adequate to make the orders sought and I prefer in the circumstances to rest my decision on that power. There will be judgment for the plaintiff and declarations and orders in accordance with the draft amended by me, initialled by me and placed with the papers. ----- -- 4 of 4 --