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  • Unreported Judgment

Bank of Queensland Ltd v Morel

 

[2013] QSC 272

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application for stay of enforcement warrant

DELIVERED ON:

27 June 2013 (ex tempore)

DELIVERED AT:

Brisbane 

HEARING DATE:

27 June 2013

JUDGE:

Margaret Wilson J

ORDER:

  1. Application refused.
  2. The applicant is to pay the respondent’s costs of and incidental to the application today 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 – IN GENERAL – where defendants’ properties were used to secure loans granted by the plaintiff – where plaintiff obtained default judgment against the defendants – where first and second defendants were one and the same person – where plaintiff obtained leave for the issue of an enforcement warrant – whether the enforcement warrant should be stayed

COUNSEL:

G Coveney for the respondent plaintiff
The applicant defendant appeared on her own behalf

SOLICITORS:

HWL Ebsworth for the respondent plaintiff
The applicant defendant appeared on her own behalf

MARGARET WILSON J:   This proceeding was commenced on 12 April 2012 by the plaintiff Bank of Queensland Limited against two named defendants, Marianne Claire Morel and Katherine Cheryl Clark.  In fact, the defendants are one and the same person. 

The bank alleged that it lent money to Marianne Claire Morel pursuant to six loan facilities, and that the repayment of the loans was secured by mortgages over two properties at Wavell Heights.  According to title searches the registered owner of each property was Katherine Cheryl Clark, that is, the same person as Marianne Claire Morel.

The two properties at Wavell Heights are at 125 White Street and 127 White Street.  After attempts at personal service, an order for substituted service was made on 23 July 2012.  On the basis that service had been effected in accordance with the requirements of the order for substituted service and no notice of intention to defend had been filed, a Deputy Registrar entered default judgment against “the first defendant and the second defendant” on 11 September 2012.  Pursuant to the terms of that default judgment, the plaintiff recovered possession of both properties and the “first and second defendants” were ordered to pay the plaintiff almost 1.5 million dollars, which included almost $50,000 interest and approximately $2,500 for costs.

On 26 September 2012 Ms Morel filed an application returnable on 31 January 2013 for an order setting aside the default judgment.  That application came before Byrne SJA.  His Honour dismissed it on 28 February 2013. 

As I understand what I have been told from the bar table (which appeared to be common ground), the bank did obtain actual possession of 125 White Street, but it has not yet obtained possession of 127 White Street.  Ms Morel has been living in 127 White Street

There is an ongoing dispute between Ms Morel and a builder in relation to 125 White Street.  That dispute is before QCAT. 

Neither property has been sold. 

The bank wishes to obtain possession of number 127 and to that end it succeeded in an application before Ann Lyons J on 3 June 2013 in obtaining leave for the issue of an enforcement warrant for possession as against any occupants of 127 White Street.

The warrant was issued on 7 June 2013.  It will expire on 6 June 2014. 

On 3 June 2013 Ms Morel filed an application to stay the enforcement warrant.  In the body of the application she sets out certain matters, both by way of argument and as facts upon which she relies in support of her application.  She is self-represented before the Court today, although she informed the Court that she has engaged solicitors who are investigating the matter for her.  Of course, any evidence upon which a party relies in support of an application needs to be on affidavit, rather than set out in the body of an application. 

Ms Morel has also filed an application for an extension of time in which to appeal against the decision of Byrne SJA.  That application for an extension of time was filed in the Court of Appeal on 14 June 2013.  The reasons stated in the application as justifying leave to appeal (by which I assume she means the grant of an extension of time in which to appeal) are as follows: 

  1. that she was denied an adjournment to obtain legal representation;
  2. that a copy of the original claim was never served on her and she was unaware of the claim against her; 
  3. that she has “medical issues ongoing as a result of all of this”; 
  4. that the matter is before the Financial Ombudsman; 
  5. that she wishes to appeal “the entire order including the costs order”.

The bank has opposed the application for a stay of the enforcement warrant.  In oral submissions before me today Ms Morel made the following points: 

  1. that the material relied upon by the bank before Byrne SJA was incomplete; 
  2. that the bank has refused to negotiate with her. 

She told the Court that she cannot deal with the situation while the bank insists upon her paying arrears.  She can nevertheless meet ongoing payments.

As I understood her submission, there was a separate mortgage over each property but the mortgages were collateralised, and she seems to be making the point that there was some “improper” conduct on the part of the bank in imposing such terms and that there was also some improper conduct on the part of the bank in incurring Court costs.  These are not matters on which I can comment, let alone resolve.  She informed the Court that they are before the Financial Ombudsman.

Her next point was that she believed she was in a better position to sell number 127 than the bank.  She criticised the bank’s attempts to sell number 125, saying that it had not been properly presented for sale.  Next, she referred to the ongoing dispute with the builder in relation to number 125, which is before QCAT.  Next, she said that while she has not filed an affidavit today, she has filed one in the Court of Appeal – but that affidavit is of course not before this Court.  Next, she relied on hardship, and finally, she informed the Court that she now has a solicitor acting for her.

It is well established that a successful party to litigation is entitled to the fruits of its judgment, and that the mere fact that an appeal has been lodged does not stay the hand of the successful party in recouping those fruits.  This is so a fortiori where there is an application for an extension of time in which to appeal.  Mere inconvenience or hardship to the unsuccessful party will not be enough for the Court to grant a stay pending appeal. The applicant has not put forward sworn material or argument to satisfy me today that there is arguably some error in the entry of the default judgment or the refusal to set it aside or the issue of the enforcement warrant. 

These are difficult economic times and it is a matter of public knowledge that the real estate market is very depressed.  While I feel considerable sympathy for Ms Morel’s personal circumstances as she has recounted them to the Court today, such sympathy cannot enter into my determination of this application.  The application has to be determined according to law, and on my understanding of the law and my assessment of what has been put before me today, there is no basis upon which I could stay the enforcement warrant.  Accordingly, the application is dismissed.

Mr Coveney, on behalf of the bank, has sought the plaintiff’s costs of and incidental to the application today.  Ms Morel has opposed a costs order on the basis that “costs have got her into the position she is in today.”  Again, while I have sympathy for her, I do not regard that as a sufficient reason to displace the general rule that costs follow the event.  Accordingly, the orders will be as follows:

  1. Application refused.
  2. The applicant, Ms Morel, is to pay the respondent Bank of Queensland Limited’s costs of and incidental to the application today to be assessed on the standard basis.
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Editorial Notes

  • Published Case Name:

    Bank of Queensland Ltd v Morel & anor

  • Shortened Case Name:

    Bank of Queensland Ltd v Morel

  • MNC:

    [2013] QSC 272

  • Court:

    QSC

  • Judge(s):

    M Wilson J

  • Date:

    27 Jun 2013

Litigation History

No Litigation History

Appeal Status

No Status