Westpac Banking Corporation v Keppel [2017] QDC 223

APPLICATION - PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - Where more than two years has passed since the judgment for possession was entered - Whether the applicant requires leave pursuant to UCPR 389(2).

District Court of Queensland Act 1967 ss 68(1)(b)(xi); s 69(2) and 69(3)(b)

Residential Tenancies and Rooming Accommodation Act 2008 s 317

Uniform Civil Procedure Rules 1999 rr 389; 389(2); 682(1)(a); 894(1); 906(1); 913(1); 913(2) and 915

Bendigo and Adelaide Bank Limited v Ruddle and Ors [2015] QSC 239

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

RHG Mortgage Corporation Limited v Bennetts [2017] QSC 28

Scholfield v Scholfield & Anor (No 2) [2104] QDC 243

Tyler v Custom Credit Corporation Limited [2002] QCA 178

[1] On 12 February 2015 the plaintiff ("applicant") obtained judgment in default of appearance and defence and upon its claim filed on 13 October 2014, for recovery of possession of the land described as Lot 24 on RP 882042 in the county of March, parish of Gympie, being all of the land contained in title reference 50033271 and situated at 1 Grandview Place, Gympie in the state of Queensland ("the Gympie property").

[2] That judgment was given against the defendants/respondents ("respondents") upon the claim made against them as the registered proprietors of that land and made by the plaintiff as the mortgagee of the land. That mortgage was security for advances made by the plaintiff to the defendants and the claim was made upon failure of the defendants to rectify notified default in respect of arrears upon the loan secured by the mortgage, or to deliver up possession of the land upon notice to do so.

[3] Consequentially and by application filed on 13 June 2017, the applicant seeks orders, pursuant to the Uniform Civil Procedure Rules 1999 and in particular: UCPR 915, allowing the issue of an enforcement warrant for the possession of the land, including, to the extent to which it may be necessary to do so, the granting of leave pursuant to UCPR 913(2) and UCPR 389(2).

[4] Upon the hearing of this application, which occurred upon notice to the respondents and any other occupants of the land and at which no one appeared to resist the application, it was noted that, neither in the abovementioned claim nor in this application, was the jurisdiction of this Court established by evidence. That is because s 68(1)(b)(xi) of the District Court of Queensland Act 1967 provides only that:

"(1) The District Court has jurisdiction to hear and determine -

(xi) to recover possession of any land, where the value of the land does not exceed the monetary limit;"

That is of interest, now only in respect of this application and has been rectified in accordance with the Court's direction at the hearing, allowing the applicant to do so, by the filing of material evidencing that the most recent valuation for the Gympie property, as at 1 October 2016, and as disclosed by QVAS-Property Search conducted on 21 July 2017, was $85,000.[1] Accordingly and pursuant to a similar search conducted on 29 September 2014, valued at $86,000 as at 1 October 2013.[2] Accordingly, it is clear that this application and for that matter the antecedent claim, are in the jurisdiction of this Court pursuant to s 69(2) and (3)(b) of the District Court of Queensland Act 1967.

[5] The judgment given on 12 February 2015 provides the entitlement of the applicant to the possession of the Gympie property and a person with such an entitlement may seek the issue of an enforcement warrant in respect of that right. However and as the explanation for this application to a Judge of the Court, UCPR 913(2) requires the leave of the Court where a person other than the person(s) against whom the order for possession is to be made is in occupation of the land under a written lease or tenancy agreement.

[6] This application is made on a precautionary basis. That is because on the evidence as to enquiry made by the applicant, it would appear likely that the occupants of the Gympie property and who may be affected by the enforcement warrant sought, include persons other than the named respondent.[3] However, it has not been ascertainable, on reasonable enquiry[4], as to whether any such occupancy is upon the basis of any lease or tenancy agreement.[5]

[7] Although enquiry has revealed that there is no registered lease and no copy of any written lease or tenancy agreement has been produced to the applicant, despite correspondence directed to the respondents and any occupants of the Gympie property seeking any such confirmation, there is evidence suggestive of the residence of relatives of the respondents there, and of conflicting assertions by the second respondent, in respect of her mother residing there and more particularly as to her paying rent.[6]

[8] In these circumstances, the applicant seeks not only the enforcement warrant but that it be issued so that it is directed at the respondents and also any occupants of the Gympie property. In the latter respect, that contention is supported by the evidence:

(a) Of steps taken that would satisfy the requirements of s 317 of the Residential Tenancies and Rooming Accommodation Act 2008 and particularly in terms of appropriate notice to any occupants to vacate the Gympie property;[7] and

(b) Compliance with UCPR 913(1), in terms of service of a copy of the judgment of 12 February 2015 on all parties against whom the enforcement warrant is sought, including any occupants of the Gympie property.[8]

[9] In a further adoption of a cautionary approach, the applicant also raises the prospect of the application of UCPR 389. That is, upon the basis that the application for an enforcement warrant has been brought more than two years after the judgment which is sought to be enforced was obtained. Accordingly and if UCPR 389(2) is applicable, an order of the Court is required to approve or grant leave to take the step of applying for the enforcement warrant. The applicant contends that UCPR 389 does not apply but otherwise seeks an order pursuant to UCPR 389(2), if it is determined otherwise.

[10] In doing so, the applicant has searched for but has been unable to locate any case where this point has been considered.[9] However the applicant does identify RHG Mortgage Corporation Limited v Bennetts,[10] as an instance where, in similar circumstances, an order was made pursuant to UCPR 389(2). That appears to have been because the application was dealt with on the basis that it arose out of the proceedings in which the entitlement to possession of the land was determined by default judgment.[11] However and as is further correctly pointed out by the applicant, the issue was there determined by application of the decision in Tyler v Custom Credit Corporation Limited[12] and without apparent consideration of the issue now raised and as to whether UCPR 389 does apply to this application.

[11] The applicant contends that an analogy may be made to the decision in Scholfield v Scholfield & Anor (No 2)[13] and where it was determined that the filing of an application for a costs order, after judgment, was not a step taken in the proceeding in which the judgment was obtained. Critical to that determination was the notation that the application was there brought in reliance upon UCPR 682(1)(a), which empowers or allows a court to award costs "at any stage of the proceeding or after the proceeding ends".

[12] In the present circumstances, the applicant points to UCPR 894(1) and further points out that this allows the enforcement of a non-monetary order without the leave of the Court, anytime within six years from the date of the order. It is instructive to note the wording of this sub-rule:

(1) A person entitled to enforce a non-money order may start enforcement proceedings without leave at any time within 6 years after the day the order was made."

[13] It may be further noted that the express reference to "enforcement proceedings" is also consistent with the procedural requirements of UCPR 906(1), which necessitates the filing of an application for the warrant that is sought, with a supporting affidavit, and the understanding that whilst the concept of "proceedings" is not expressly defined in the UCPR, Part 1 of Chapter 2 allows for proceedings (including originating proceedings) to be started, or originated, by application, where it is appropriate to do so.[14]

[14] Accordingly and consistently with the conclusion reached, in a different context, in the Schofield decision, [15] it should be concluded that UCPR 389 does not apply to the present matter, on the basis that the proceeding to which it might apply is the proceeding started by the claim filed on 13 October 2014 and in respect of which the last, and in the circumstances, final or concluding, step taken was the entering of judgment on 12 February 2015.[16]

[15] UCPR 389 is expressed in terms that allows application in any proceeding and therefore it is potentially applicable to the enforcement proceedings which were commenced by the filing of the application for the enforcement warrant on 13 June 2017. That application has been filed within the period of six years after judgment, as allowed by UCPR 894(1) and there is no relevant delay therefore triggering the application of UCPR 389 to the enforcement proceedings.

[16] Such conclusions remains appropriate, notwithstanding that the enforcement proceedings may be seen as arising out of the judgment earlier obtained and also notwithstanding that as a matter of administrative practice, the application for the enforcement warrant has been filed under the original claim number.

[17] However, it is further appropriate to record that had a different conclusion been reached as to the applicability of UCPR 389 to this application, it would have been appropriate to make an order, or grant leave, pursuant to UCPR 389(2). That is particularly because:

(a) A satisfactory explanation for the delay has been provided and is found in the applicant's attempts to communicate with the respondents and the occupants of the Gympie property, on more than one occasion, to attempt to obtain agreement for voluntary vacation of that property and the position that has now been reached is that the property has simply not been vacated voluntarily;[17]

(b) In such correspondence the applicant has on several occasions, reserved its rights to proceed with enforcement of the judgment by obtaining an enforcement warrant, if the property was not vacated voluntarily;[18]

(c) There has, as has already been noted, been appropriate service of the judgment and also the application for the enforcement warrant on the respondents and the occupants, such that it can be concluded that they have been provided with an opportunity to be heard;[19] and

(d) There is no apparent prejudice to any person to whom the enforcement warrant may be directed and the only apparent consequence of the delay has been the continued occupation of the Gympie property, despite the applicant's entitlement to possession of it and despite the loan being in default and in arrears, which and as at 20 July 2017, amounted to $95,933.04.[20]

[18] Accordingly, it is appropriate to make the orders sought by the applicant to:

(a) Grant leave pursuant to UCPR 913(2) for the issue of an enforcement warrant under UCPR 915; and

(b) Direct the issue of that warrant, in the form sought by the applicant and directed to the occupants of the Gympie property in addition to the defendants in the claim which gives use to the enforcement proceedings.

1. Joshua Lloyd David Keppel;
2. Crystal Robin Keppel; and
3. Any occupants of 1 Grandview Place, Gympie in the State of Queensland.

By Order of the Court dated 12 February 2015, Westpac Banking Corporation (ABN 33 007 457 141) is entitled to recover possession of the land described as Lot 24 on Registered Plan No. 882042 in the County of March, Parish of Gympie, being all of the land contained in title reference 50033271 and situated at 1 Grandview Place, Gympie in the State of Queensland.

- You are to enter upon that land, and deliver possession of the land and appurtenances to Westpac Banking Corporation (ABN 33 007 457 141).

NOTICES TO PERSON REQUIRED TO COMPLY WITH THE ORDER

- You may apply to the court to set this warrant aside or to stay its enforcement at any time.

[1] See Exhibit MJV-4 to the affidavit of Mr MJ Vickery filed 24/7/17.

[2] See Exhibit MJV-3 to the affidavit of Mr MJ Vickery filed 24/7/17.

[3] Applicant's outline of submissions, at 9.

[5] It may be noted that an order of the kind sought in this application, was made in similar circumstances of uncertainty as to who occupied the subject land, in Bendigo and Adelaide Bank Limited v Ruddle and Ors [2015] QSC 239, except that was noted to not be an occupation for residential purposes.

[6] Applicant's outline of submissions, at 9.

[10] [2017] QSC 28.

[12] [2002] QCA 178.

[16] Such a conclusion is also consistent with the observations drawn from Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594 (per McPherson JA, with Ryan and Dowsett JJ agreeing at 595) and as cited in Schofield at [21].

[17] Applicant's outline of submissions, at 27(a).