Morel v Bank of Queensland Ltd
[2013] QCA 207
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- Unreported Judgment
- Appeal Determined (QCA)
- Morel v Bank of Queensland Ltd[2013] QCA 207
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Morel v Bank of Queensland Ltd[2013] QCA 207
Morel v Bank of Queensland Ltd[2013] QCA 207
COURT OF APPEAL
FRASER JA
Appeal No 5380 of 2013
SC No 3378 of 2012
MARIANNE CLARE MORELApplicant
v
BANK OF QUEENSLAND LIMITEDRespondent
ACN 009 656 740
BRISBANE
TUESDAY, 30 JULY 2013
JUDGMENT
FRASER JA: This is an application to stay execution upon a default judgment for possession and some money which was entered on 13 September 2012. The claim was made by the respondent bank for possession pursuant to a mortgage. The default was proved and there was an affidavit of service. All the other requirements were proved and judgment by default was entered on 13 September 2012. The applicant applied to set aside the default judgment on 26 September 2012. Ultimately that was heard on 28 February 2013 and it was dismissed. At that point the arguments were two-fold.
First it was said that the judgment was irregularly entered because the applicant was not actually served with the claimant’s statement of claim and there was some evidence to the effect that the necessary material might have been posted but was never received by the applicant. However that was rejected by the applications judge as service by post and email was performed in accordance with an order for substituted service which had been made on 24 July 2012.
Secondly there was no argument that there was a defence on the merits. The argument was rejected by the applications judge and accordingly the application to set aside the full judgment failed. There was subsequently an enforcement warrant issued on 3 June 2013 and on that date the applicant filed an application to stay or set aside the enforcement warrant. That application was dismissed on 27 June 2013. In the meantime on 14 June 2013, many months after the default judgment was entered the applicant filed an application for leave to appeal, meaning an application for an extension of time to appeal, against the decision made on 28 February 2013 refusing to set aside the default judgement. Finally, in this chronology, the present application for a stay pending appeal was filed on 9 July 2013.
The only argument which is said to provide an arguable case in the proposed appeal is that there was not strict proof of service in accordance with the order for substituted service.
The order for substituted service had provided for service of the relevant documents including sealed copies of the claimant’s statement of claim by emailing the documents to a specified email address and by “posting the documents by pre-paid registered post to Marianne Clare Morel at 127 White Street, Wavell Heights Qld 4012.” A further order provided that service in accordance with that order should be deemed good and sufficient service of the document upon the applicant. The appeal is to be based on the proposition that proof of service was insufficient, although there was an affidavit filed by a solicitor for the bank in the following terms:
“On 7 August 2012, I caused to be sent by registered post to the defendant at 127 White Street, Wavell Heights in the State of Queensland, a letter enclosing the sealed claim and Statement of Claim dated 12 April 2012 and a copy of the order of Justice Wilson dated 23 July 2012. Exhibited to this affidavit and marked RCL2, is a copy of my correspondence dated 7 August 2012.” The exhibited letter included the address of the defendant in accordance with the terms for substituted service.
The first suggested deficiency in proof is that it was insufficient for an affidavit to depose to having caused to send the material. It was submitted that there should be further details of the processes by which the material was sent. The second point was that there was no direct evidence of the address on the envelope, and the third point was that there was no evidence that the correct postage was affixed to the envelope.
These propositions are based upon a judgment of Justice Daubney in Re Green Global Technologies Limited [2009] QSC 262. That case, however, concerned a statutory demand, the consequences of failure to comply with which are very serious, including deemed insolvency in some circumstances. No decision has been cited, to the effect that the form of the affidavit of service in the case of a default judgment used in this case is inadequate in any respect. As to the particular criticisms, my provisional view is that an affidavit by a solicitor that she caused the item to be sent by registered post is sufficient proof that it was sent by registered post. As to the address on the envelope, the affidavit referred to enclosing the sealed claim of statement of claim and a copy of the order in what she sent by registered post to the address identified both in the body of the affidavit and the exhibit. And as to the correct postage being affixed, to swear that something is caused to be sent by registered post to the defendant does seem to me, provisionally, to identify that the correct postage was affixed.
The applicant has also sworn an affidavit in this application in which she deposes that she received from Australia Post a letter dated 5 February 2013 concerning her inquiry about a particular registered item posted to her in August 2012. The letter from Australia Post upon which the applicant relies suggests that this item was received by Australia Post and returned to the sender on 22 August 2012, then being delivered to the return address on 24 August 2012. There is no suggestion that it was returned on account of any deficiency in the addressing or in the postage.
In the result, whilst I am not prepared to express any final opinion, it seems to me that the prospects of success in the appeal on this point are poor.
As to the balance of convenience, the applicant relies upon her evidence that she has been in poor health. She has not yet been able to find alternative accommodation. Her counsel acknowledges that she has been offered assistance in moving from the residence but submits that this does not ameliorate the disadvantage she will suffer by having to move out of her house. On the other hand, counsel’s own written submissions acknowledge that she has herself been attempting to sell the house and that is verified by evidence filed by the respondent. It seems therefore, that what is involved here is merely a question of the timing of an inevitable sale of the house. It is hard to see, therefore, that the applicant will suffer substantial prejudice if the stay of execution is not granted.
So far as the bank is concerned, the evidence suggests that it may well not receive any further payments, or at least, not the payments which are required under the mortgage, although, of course, the liability will continue to accrue. Whether or not that causes any real prejudice to the bank is hard to tell. That depends upon whether the applicant’s equity in the house will be eroded before the final determination of the appeal.
In any event, however, I am not persuaded that the applicant has demonstrated either strong enough grounds of appeal or such significant prejudice as justifies depriving the bank of the fruits of the litigation in which it has succeeded to date. However, I would be prepared to grant a short stay to provide the applicant with some further time to move from the premises. I will hear submissions on that point.
…
In view of the evidence of the applicant’s poor health and the considerable pressure on her and her inability to find alternative accommodation to date, I am prepared to grant a short stay, notwithstanding that I refuse the application for a stay pending appeal. I stay the execution of the default judgment until 4.00 pm on 6 August.
...
The respondent has applied for an order for costs in its favour. There is nothing that can be said against the making of such an order, although it may or may not be satisfied. I order that the applicant pay the respondent’s costs of the application.
So the substantive orders are:
1.The application for a stay of the execution of the default judgment pending appeal is refused.
2.Order a stay of execution of the default judgment until 4.00 pm on 6 August 2013.
3.The applicant pay the respondent’s costs of the application.