Plaintiff v Defendant

Supreme Court of Victoria|2009-09-03|Before: FORREST J

PRACTICE - Appeal against decision of associate justice - Duration of warrant of execution - Extension of time for the execution of the warrant.

1 This is an appeal by Mr Shaw, who appears for himself, against an order of the Associate Justice Kings made on 24 August 2009.

3 On 28 August, Mr Shaw lodged a notice of appeal against that decision. This, of course, is hearing de novo.[1]

4 The defendants, Yarranova and New Quay, rely upon, principally, an affidavit sworn by Ms Emma Louise Rattray, which sets out in some detail the events that led to the application being made before Associate Justice Kings to extend the time for the warrant.

5 The application is made under Rule 68.05. R 68.05(1) provides that the warrant of execution is valid for the period of one year after the day it was issued. R 68.05(2) provides that, notwithstanding r 68.05(1), the Court may, from time to time, by order, extend the period of validity of the warrant for the purpose of execution for not more than one year at any one time from the day on which it would otherwise expire. That order has to be made before the day of expiry as provided for by r 68.05(3).

6 The principal authority in relation to the circumstances in which the court may make such an order is that of Finnegan (Timber) Pty Ltd v Beechey,[2] a decision of the Full Court in which Young CJ set out the Court's reasons (with which Anderson and McGarvie JJ agreed). The critical passage reads as follows:

"If the judgment creditor has applied for renewal of the writ fi fa under order 42 rule 20 before it expired, and had support of the application with evidence showing that it was important to maintain the priority of the date under the original writ, it may be that no difficulty would have arisen."[3]

In Beechey no application to extend had been made nor had any material been provided in relation to maintaining the priority of the date under the original writ.

7 It is necessary now to say something of the history of the warrant and the attempts to execute it.

8 The warrant was issued on 27 August 2008, meaning that it expired on 27 August 2009.

9 On 7 November 2008, the warrant was returned unsatisfied.

10 On 20 March 2009, pursuant to the provisions of the Transfer of Land Act, the warrant was registered on the title of Mr Shaw's property located at 5 Mast Gully Road, Upwey ("the property").

11 On 22 May, Evans AsJ ordered that service of the advertisement of the sale be dispensed with and Mr Shaw was to pay the costs of that application.

12 On 27 May, Evans AsJ gave Yarranova and New Quay leave to amend the warrant.[4]

13 On 27 May, the property was passed in at auction as it failed to meet the reserve; in fact there were no bids.

14 On 16 July 2009, Evans AsJ ordered the property be sold to the highest bidder with no reserve price. That application was necessary given the failure of the earlier sale.

15 The sheriff has now arranged for the property to be sold on 9 September 2009. The auction was advertised in "The Age" and the Government Gazette on 6 August 2009.[5]

16 So, the short point is that without the extension of time of the warrant, the sale cannot proceed and Yarranova and New Quay will have to commence the warrant process again.

17 The submission on behalf of Yarranova and New Quay is that in all the circumstances they have acted reasonably in endeavouring to effect the sale and that accordingly, the warrant should be extended particularly given that the unreserved sale is imminent.

18 Mr Shaw, who appeared for himself and made, if I may say so, cogent submissions in relation to why the warrant should not be extended. He primarily relied upon the delay between 27 May when the property was not sold, and 16 July when Yarranova and New Quay sought orders from Evans AsJ in relation to the sale without a reserve as being inimical to an order in their favour. This was accompanied by a submission that in those circumstances, Yarranova and New Quay had not demonstrated why they should have priority over any other party.

19 I have carefully read the affidavit of Ms Rattray. I am satisfied that the steps taken by Yarranova and New Quay have been reasonable. True it is there might be some criticism of their short delay, however this case has a torturous and difficult history, and given the matters set out in Ms Rattray's affidavit, I do not regard the delay between the failed auction and the application before Evans AsJ as being inordinate. The reality, as I perceive the evidence, is that the solicitors have made reasonable efforts to achieve a sale within the year stipulated under the rules. There is no good reason, in my view, why the time should not be extended as Kings AsJ ordered on the application before her.

20 In my view the appeal should be dismissed and I propose to make orders consistent with that conclusion.

21 The orders I propose to make are (a) the appeal against the orders of Associate Justice Kings made 24 August be dismissed and (b) that the appellant (plaintiff) pay the respondents' (defendants) costs of the appeal.

[4] Exhibited to Ms Rattray's affidavit.

[5] Copies of those advertisements are annexed as Exhibit ELR11 to the affidavit of Ms Rattray.

At a glance

Court

Decision date

Before

Source

Judgment (29 paragraphs)

Parties