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Quaresmini v Perpetual Trustee Company Ltd

 

[2011] QCA 74

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Quaresmini v Perpetual Trustee Company Ltd & Anor [2011] QCA 74

PARTIES:

LAURENCE JOHN QUARESMINI
(appellant)
v
PERPETUAL TRUSTEE COMPANY LIMITED
ACN 000 001 007
(first respondent)
CHALLENGER MANAGED INVESTMENTS LIMITED
ACN 002 835 592
(second respondent)

FILE NO/S:

Appeal No 2766 of 2011
SC No 3666 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

20 April 2011

DELIVERED AT:

Brisbane

HEARING DATE:

20 April 2011

JUDGES:

Fraser and White JJA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDERS:

The appeal is dismissed with costs, including reserved costs, to be assessed on the standard basis

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE OR WRIT OF FIERI FACIAS – PRACTICE – SETTING ASIDE WRITS – where the appellant defaulted under mortgages granted to the respondents – where the respondents obtained default judgment and an enforcement warrant for possession of the land – where the appellant rectified arrears of interest on multiple occasions subsequent to the default judgment but fell into default again – where the appellant applied for a stay of the default judgment and an order setting aside the enforcement warrant – where the appellant argued that the rectification of arrears of interest "satisfied", "exhausted" or "spent" the default judgment – where the respondents were contractually entitled to possession and the default judgment had been regularly entered and was not challenged by the appellant – whether the primary judge erred in refusing to stay the default judgment or set aside the enforcement warrant – whether the Court's discretion to stay enforcement of a warrant for possession under r 895 of the Uniform Civil Procedure Rules 1999 (Qld) should be exercised

Uniform Civil Procedure Rules 1999 (Qld), r 830, r 895

Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 , cited

COUNSEL:

A J H Morris QC, with N J Thompson, for the appellant
P D Hay for the respondents

SOLICITORS:

Fernvale Law for the appellant
Norton Rose Australia for the respondents

 

FRASER JA:  On 21 September 2009 a judgment in default of any notice of intention to defend was entered against the appellant in favour of the respondents that they recover possession of certain land owned by the appellant.  On 30 October 2009 an enforcement warrant issued pursuant to the default judgment directing the enforcement officer to enter upon the land and deliver possession of the land and appurtenances to the respondent Perpetual Trustee Company Limited.  The warrant was renewed for a further 12 months on 1 November 2010.  On 17 March 2011 the appellant applied in the trial division for orders staying the enforcement of the default judgment and setting aside the enforcement warrant.  The respondents cross applied for a declaration that the appellant was not entitled to enter upon or in any way occupy or use the land, injunctions restraining the appellant from entering upon, occupying, or using the land and for an order requiring the appellant to remove his personal chattels from the land.

 

On 29 March 2011 the Chief Justice dismissed the appellant's application and granted the injunctions and order sought by the respondents.

 

The appellant's appeal is based upon the proposition that the Chief Justice should have found that the respondents were not entitled to an enforcement warrant because when the warrant was issued and renewed "any default which might have given rise to a continuing entitlement to possession by the Appellant had been remedied so that no amount was then due under the securities or mortgages relied upon by the [respondents]."  I quote from ground 1(a) of the appellant's notice of appeal.  In support of that proposition, the appellant's counsel argued in a written outline of submissions that a loan account put in evidence by the respondents demonstrated that when the enforcement warrant was sought and when it issued on 30 October 2009 no money was due and payable by the mortgagors under the mortgage. 

 

That argument was based upon a mistaken view of the evidence.

 

The respondents' statement of claim made allegations to the following effect:  in 2004 the appellant granted mortgages to Permanent Trustee Australia Limited; in 2005 that company transferred the mortgages to the first respondent; the mortgages secured the repayment to the respondents of monies owing by the appellant to the respondents; in July 2007 the appellant defaulted in the payment of interest due under his mortgages; on or about 17 July 2007 the respondents served upon the appellant notices under s 84 of the Property Law Act 1974 (Qld) requiring him to pay the arrears of interest and specifying that if the default was not remedied within 30 days the first respondent might proceed to sell the land and exercise all or any of the powers conferred on it by the mortgages and by the Property Law Act; and notwithstanding those notices the appellant had not paid the amounts demanded and remained in default.

 

Those allegations were supported by evidence adduced at the hearing in the trial division.  According to an affidavit sworn by a manager employed by the second respondent, which the appellant did not challenge, the $815,000 secured by mortgages granted by the appellant was advanced to him on 23 July 2004 pursuant to a loan agreement.  The loan account recorded that between February and July 2007 the appellant failed to pay several instalments of interest due under the loan and mortgages.  Interest of about $41,000 was overdue on 17 July 2007 when the respondents served the notices pleaded in the statement of claim.  Thereafter the appellant remained continuously in default until the first respondent issued proceedings on 22 April 2008, when about $59,000 was overdue.  The appellant temporarily remedied the default between 9 and 31 October 2008, but he again fell into arrears.  When judgment was entered on 21 September 2009 $33,460.46 was overdue.

 

Plainly there was an "event of default" as that term was defined in the mortgages.  The mortgages included a conventional provision to the effect that upon the occurrence of an event of default the mortgagee was entitled to possession of the mortgaged land.  On the evidence, the first respondent was contractually entitled to possession and the judgment was regularly entered.  The appellant's counsel did not argue to the contrary.

 

After judgment was entered the appellant remained in arrears until the enforcement warrant issued on 30 October 2009.  At that time $21,156.93 was overdue.  The appellant subsequently brought the account up to date on two occasions, between 6 and 30 April 2010 and for one day on 24 August 2010, but he again fell into arrears.  When the enforcement warrant was renewed on 1 November 2010 $13,189.62 was overdue.  The appellant thereafter remained in default up to and including the date of the hearing before the Chief Justice on 29 March 2011.

 

The Chief Justice observed that: "But the fundamental difficulty confronting the second defendant [the appellant] is that the enforcement warrant, in my view, validly issued upon a regularly entered judgment in default, which has not been set aside.  The position may have been different if the second defendant had secured the setting aside of that judgment, but he did not seek or secure that.  While the judgment stood, the enforcement warrant could be issued, with the result that it now stands."

 

Perhaps in a different case that observation might require qualification to allow for the possibility of, for example, an application grounded on abuse of process, relief from forfeiture, or facts arising after entry of judgment which entitle a defendant to be relieved from a judgment: see UCPR rule 668(1)(a).  But no such possibility is raised by the evidence in this case.  On the facts of this case the default judgment, which was not appealed or otherwise challenged, established the first respondent's right to possession of the mortgaged land as against the appellant: see Mango Boulevard Pty Ltd v Spencer & Ors [2010] QCA 207 at [55] per Muir JA and at [118] by myself, White JA agreeing.  The appellant argued that satisfaction of the "matters of complaint in the proceedings giving rise to the judgment" justified a stay.

 

In oral submissions, the appellant's senior counsel argued that the judgment was "satisfied", "exhausted", and "spent" by the payment which, he argued, remedied the interest default on 6 April 2010.  He argued that this precluded the first respondent from enforcing the judgment and that it was an abuse of process for the first respondent to do so.  No authority was cited for this proposition.  It is irreconcilable with the first respondent's entitlement to possession established by the final judgment.  The judgment could be satisfied only by delivery of possession.

 

Of course the Court possesses the power under r 895 of the UCPR to stay an enforcement warrant.  In that respect, it should first be noted that, in relation to the enforcement of money orders under ch 19 of the UCPR, r 830 provides that an enforcement officer must not sell property seized under an enforcement warrant if, at or before the sale, the enforcement debtor pays to the enforcement officer the amount owing under the order including interest, the costs of enforcement then known to the enforcement officer, and an amount set by the enforcement officer as security for the enforcement creditor's other costs of enforcement.  However this appeal concerns the enforcement of non-money orders under ch 20 of the UCPR which does not contain any provision similar to r 830.

 

Assuming, without deciding, that in a case of this general character the Court has an unfettered discretion under r 895 to stay enforcement of a warrant for possession, this was not an appropriate case for the exercise of the discretion.  There was unchallenged evidence at the hearing in the trial division that the principal amount of the loan fell due for repayment on 1 July 2010 and remained unpaid.  If payment of the principal had not earlier been accelerated (the Chief Justice described the evidence on that topic as "limited") the appellant was in default in repayment of both principal and interest on and from 1 July 2010.  In any event, the appellant remained in default in the payment of interest.  The appellant had been in default for the very long period from July 2007 up to the hearing on 29 March 2011, except during the few short periods I mentioned earlier in these reasons.  That history suggested that if the appellant remedied his present default he would quickly fall into default again.  But although the appellant swore an affidavit in support of his application, that affidavit merely referred to the few occasions on which the loan was not in default.  The appellant did not adduce any evidence to suggest either that he might remedy his then existing default or that he might thereafter keep the account up to date.  It is hardly to be expected that the Court would stay enforcement of a regularly entered judgment in those circumstances.

 

I would dismiss the appeal, with costs to be assessed on the standard basis.

 

WHITE JA:  I agree, for the reasons given by the presiding Judge, with those orders he proposes.

 

PETER LYONS J:  I also agree.

 

FRASER JA:  Those are the orders of the Court.

...

FRASER JA:  The orders of the Court are that the appeal is dismissed with costs, including reserved costs, to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    Quaresmini v Perpetual Trustee Company Ltd & Anor

  • Shortened Case Name:

    Quaresmini v Perpetual Trustee Company Ltd

  • MNC:

    [2011] QCA 74

  • Court:

    QCA

  • Judge(s):

    Fraser JA, White JA, P Lyons J

  • Date:

    20 Apr 2011

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2011] QCA 74 20 Apr 2011 -

Appeal Status

{solid} Appeal Determined (QCA)