Pioneer Mortgages Ltd. v Uribe
[2005] QDC 316
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- Pioneer Mortgages Ltd. v Uribe[2005] QDC 316
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Pioneer Mortgages Ltd. v Uribe[2005] QDC 316
Pioneer Mortgages Ltd. v Uribe[2005] QDC 316
[2005] QDC 316
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2323 of 2005
PIONEER MORTGAGES LIMITED (ACN 095 875 755) | Plaintiff |
and |
|
JORGE URIBE | Defendant |
BRISBANE
DATE 12/10/2005
ORDER
CATCHWORDS | Uniform Civil Procedure Rules r 490, r 913, r 915 Residential Tenancies Act 1994, s 187A – application without an oral hearing for leave to issue an enforcement warrant for possession of mortgaged premises occupied by a tenant – plaintiff mortagee had obtained default judgment for possession against the owner. |
HIS HONOUR: This is an application on the papers by the plaintiff which has obtained a default judgment against the defendant for the following orders to aid enforcement of the judgment:
- the plaintiff be granted leave pursuant to Rule 913(2) of the Uniform Civil Procedure Rules to issue an enforcement warrant for possession of the land described as lot 161 on registered plan 199944 in the County of Stanley Parish of Mitchell, title reference 16791215, being the land situated at 11 Trebeck Street, Browns Plains in the State of Queensland;
- the costs of and incidental to this application be costs in the cause.
The rule referred to requires that the Court's leave be obtained before an enforcement warrant for possession under rule 915 is available, "if a person other than the person against whom the order is made is in occupation of land under a lease or tenancy agreement."
The plaintiff has complied with the procedure for having the application decided without an oral hearing set out in Rule 490; relevant service of it has occurred, and no person has given notice suggesting that an oral hearing is inappropriate.
The evidence before the Court indicates that the subject property (entitlement to recover possession of which the plaintiff mortgagee enjoys under the default judgment) has been rented to Mr Robert Berthelsen through the LJ Hooker office at Browns Plains. It appears that the lady who attended at the premises for purposes of giving appropriate notices there readily appreciated that Mr Berthelsen is profoundly deaf. Communication occurred mainly through the writing and passing of notes.
The situation is regulated not only by Rule 913, but also by Section 187A of the Residential Tenancies Act 1994 which provides:
"187A Notice about proposed action of mortgagee.
- (1)This section applies if -
- (a)residential premises are subject to a mortgage; and
- (b)after the premises become subject to the mortgage, a residential tenancy agreement is entered into for the premises; and
- (c)the mortgagee under the mortgage does not consent to the tenancy; and
- (d)the mortgagee, or another person appointed under the mortgage (the appointed person), has become entitled to obtain possession of the premises.
- (2)The mortgagee must not obtain possession of the premises unless, at least 4 weeks before obtaining possession, the mortgagee or the appointed person gives the tenant written notice informing the tenant that possession is to be obtained.
Maximum penalty - 50 penalty units.
- (3)The appointed person must not obtain possession of the premises unless, at least 4 weeks before obtaining possession, the appointed person or mortgagee gives the tenant written notice informing the tenant that possession is to be obtained.
Maximum penalty - 50 penalty units.
- (4)In this section -
obtain includes take."
The material before the Court indicates that Mr Berthelsen who is along with the defendant a respondent in the application has been alerted to the plaintiff's requiring possession. Anita Babich-Ganim's affidavit filed the 23rd of September 2005 indicates service of an appropriate letter addressed to "The tenant(s), Lot 11 Trebeck Street, Browns Plains" of 8th September 2005 outlining the circumstances and the effect of Section 187A, also enclosing a copy of the judgment entered against the defendant on the 12th of August 2005.
I will sign the draft order supplied under the Rules which is in terms of the application. I am uncertain what will be the effect of the costs order as there may be no costs in the cause. The default judgment for recovery of possession of the land and also "$137,751.37 including $2,984.16 interest to 12 August 2005 and $1659 in costs" may be incapable of having any effect about costs apart from the costs specifically included. In other words, there is no general order for costs of the proceeding. However it does not seem appropriate to depart from the costs order requested.