Perpetual Trustee Company Limited v Davies
[2011] QDC 160
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- Perpetual Trustee Company Limited v Davies[2011] QDC 160
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Perpetual Trustee Company Limited v Davies[2011] QDC 160
Perpetual Trustee Company Limited v Davies[2011] QDC 160
DISTRICT COURT | [2011] QDC 160 |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 1121 of 2011 | |
PERPETUAL TRUSTEE COMPANY LIMITED | Plaintiff |
and | |
TERRENCE GEOFREY DAVIES | Defendant |
and | |
BETHANY ROYALE WILLIAMS | Defendant |
BRISBANE | |
..DATE 14/07/2011 | |
ORDER | |
CATCHWORDS | Uniform Civil Procedure Rules 1999, r 907 Enforcement of warrant for recovery of possession of residential premises stayed for 2 weeks on assertions defendants would be able to satisfy plaintiff mortgagee's requirements |
HIS HONOUR: The order of the Court is that enforcement of the warrant issued on the 20th of June 2011 be stayed until 30 July 2011. I order that the plaintiff's costs of today's application and costs thrown away by reason of the stay be paid by the defendants, such costs to be assessed if not agreed.
The warrant is for entry upon land - apparently, acreage - where the defendants' residence is and delivery of possession of the land to the plaintiff. The warrant contains the customary notice, "You may apply to the Court to set this warrant aside or stay its enforcement at any time,"setting out the effect of rule 907.
Pursuant to that invitation, the defendants, represented by their stepdaughter, Ms Skreblin, approached the Court yesterday seeking relief against the threatened taking of possession of the premises by the Court Bailiff next Saturday. An application in rather irregular form was filed today and an affidavit by the male defendant.
Those documents complain of the behaviour of the person who delivered the warrant which is said to have been assessed as threatening and to have included information that the defendants could not seek legal advice or take legal action, that nothing could be done and contacting Pepper Home Loans to discuss the matter was pointless as nobody could stop the taking of possession.
Mr Reilley, the Bailiff, who is the person referred to, was given the opportunity to respond to those contentions and hotly disputed them. He's an officer of the Court, well known to those who work here. While his manner might have seemed brusque to persons in a vulnerable and difficult situation who did not know him, I accept his statements. In particular, I accept that he gave advice to the defendants, or one of them, that they ought to contact the plaintiff's solicitors from whom he would be seeking advice about what might be done under the warrant. I accept that he pointed out the details of those solicitors as shown in the footer of the warrant document.
Pepper Home Loans manage the relevant loan for the plaintiff. Arrangements went into default and default judgment was granted by the Deputy Registrar on the 19th of May this year for $591,419 and recovery of possession of the property. Whatever the Bailiff might have said and, apparently, the date was the 5th of July 2011, the defendants have not adopted the line of not doing anything but, rather, made the application to the Court, which comes on urgently. Ms Chung from the firm of lawyers representing the plaintiff learned of the matter only last night and has attended to represent her client's interest today.
It rather seems that the defendants were stunned into inactivity by the circumstances and that it's the urgings of the next generation of the family (confided only in recent days) that have got them to do something very belatedly. Ms Skreblin, from the Bar Table, makes complaints of a kind that the Court is very much used to hearing, that the officers of the plaintiff or its loan manager and perhaps of the lawyers have indicated willingness to consider ways out of the difficulty which the defendants are obviously having at meeting their mortgage obligations. It's suggested that persons in that category have exhibited bad faith and the like and that sensible proposals can be advanced for the defendants.
Their understanding is that a sum far less than the judgment amount, which I understand to be the order of $47,000, has been indicated to them by some person as the amount required to induce the plaintiff to stay its hand and let the defendants keep their house which, unless something happens, is likely to be put up for a mortgagee sale. The Bailiff's involvement is simply to obtain possession of the property for the plaintiff, not to sell.
Ms Skreblin asserts that contributions of family members and ability to borrow, in particular, of a sister who is said to have relevant equity in a house, will ensure that what is believed to be the requisite sum can be provided within two weeks. Bitter experience would lead the average Judge to be doubtful about assertions of that kind coming true but that's not to say there'll be such a disappointing outcome here. Even if it is achieved, given the state of Court orders, it will require an indulgence from the plaintiff if that's going to be of real use to the defendants.
Rightly or wrongly, I form the view that the Court ought to grant an indulgence to the defendants of two weeks sought. That's done on the basis of the unusual nature of the application which, in my experience, is without many precedents, notwithstanding that there must be many defendants in a situation like that of the present ones. I'm also impressed by the genuineness which I think Ms Skreblin exhibits in her presentation of the defendants' case. It's difficult to see that the delay of the two weeks will cause any substantial detriment to the plaintiff. None was asserted.
What's occupied most of the time today is the Court's trying to find a way around the rather ham-fisted nature of established processes for enforcing warrants like the present one. Over the luncheon adjournment, I took the opportunity to confirm with the Sheriff and one of his senior officers that Mr Reilly's understanding is correct, that, in this jurisdiction, an enforcement warrant for possession of land is taken to require the obtaining of vacant possession of the relevant property, which means removal of everything in it that can be moved. Such items, presumably, are not part of the plaintiff's security. Those items here are said to include animals housed outside and others housed inside, including small dogs and hundreds of fish in a tank.
The Court's concern - which in the circumstances outweighs its concern that the defendants and other members of their household ought to have somewhere to sleep and live - is for the moveable items which, if events follow their ordinary course, will be collected from the premises, if they're still there when the warrant is executed, placed in removal vans, taken to a suitable storage venue and unloaded there, awaiting another move, presumably on the owners' instructions. There's obviously considerable trouble and cost involved in those activities and, I would think, a risk of damage to items of property. My understandingis that locks would most likely be changed.
It's asserted from the Bar Table that the defendants have nowhere immediately available where they could remove items. That's easy enough to accept. If everything were to turn out as Ms Skreblin hopes, in two weeks, the defendants might be back in their premises, having to get all their property back there with them.
I've striven to reach an outcome today which would see them out of the property but their goods and chattels and, perhaps, animals, if proper arrangements could be made for them, remain in the property undisturbed over the next fortnight. The Sheriff's officer informed me of his understanding that, in New South Wales, there exists what he called a lockout process, which would be to that effect. It would signify that the defendants have lost possession of the property but not involve immediate disruption of the conditions under which their personal property exists and is protected.
I have proposed granting the two week stay sought on condition that the defendants, next Saturday, provide the keys of the premises to the plaintiff. That was deliberately done to ensure that the Court and the Bailiff are not implicated in the scenario at all, unless and until the Bailiff executes a warrant. If the time came for that to occur, the Bailiff would be able to obtain the keys from the plaintiff.
Ms Chung asked for an opportunity to seek instructions from her client which, not surprisingly, declined the proposal, preferring an unconditional stay of two weeks, the granting of which of course has been resisted throughout the day by MsChung.
The fear of liability, should anything untoward occur in relation to the premises, is effectively the controlling consideration in this context. The Bailiff ought not to be put in a position of coming under liability for things that might happen to the property or the contents of it or entrants to it while he may be technically in possession.
The Bailiff, the Sheriff and his officer confirm that, when the possession is taken, the whole exercise is carried out as expeditiously as possible so that possession can be handed to the plaintiff, which will then bear responsibility. It's not surprising that the plaintiff is unwilling to assume such a responsibility in the short term, given the number and nature of the non-human residents of the place.
Those are the reasons for the Court making the order indicated above. It ought to be recorded that Mr Reilly reports that his engagements are such that there seemed no prospect of his enforcing the warrant until August. He had consulted his diary and it indicated an earlier date than the one he originally envisaged would be available.
I mention this feature because of Ms Chung's proper concern that if there were to be any stay, that would involve the plaintiff in loss of an opportunity to gain possession this Saturday without any assurance of when the next suitable opportunity might come. It would, apparently, not be the case that, should events produce the outcome that possession could be taken on the 28th of July, there would be weeks of further delay. Mr Reilly is available on 6th August.