Permanent Custodians Limited v Weeding
[2012] QDC 135
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- Permanent Custodians Limited v Weeding[2012] QDC 135
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Permanent Custodians Limited v Weeding[2012] QDC 135
Permanent Custodians Limited v Weeding[2012] QDC 135
[2012] QDC 135
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2950 of 2011
PERMANENT CUSTODIANS LIMITED | Applicant |
and | |
GREGORY WILLIAM WEEDING | Respondent |
BRISBANE
DATE 18/04/2012
ORDER
CATCHWORDS | Residential Tenancies Act 1994 s 187A Uniform Civil Procedure Rules r 375, r 913 Leave to issue an enforcement warrant for possession of several premises occupied by persons other than the defendant - existing warrant for one premises amended to refer to the presumed occupant and other occupants generally |
HIS HONOUR: This is an application on the papers by the plaintiff which has obtained a default judgment against the defendant for the amount of a mortgage debt and for possession of the mortgaged premises which are three separate lots in the town of Berserker.
What is required is leave pursuant to rule 913(2) to issue an enforcement warrant for possession of the three properties.
The submissions accompanying the application refer to Pioneer Mortgages Limited v Uribe [2005] QDC 316. The circumstances there were similar. The reasons that were given for the court's order refer to section 187A of the Residential Tenancies Act 1994 which regulates the situation, as does rule 913, where a tenant rather than the defendant is in possession of relevant premises.
The material in this case shows that appropriate notice has been given to the tenants and indeed the application itself with a copy of Mr Hayes' affidavit has been served on the occupants of 44 and 46 Burnett Street and 47 Lucas Street as well as on the defendant, Mr Weeding, by David Ian Paige. There's a helpful report from the bailiff, who served Mr Weeding with enforcement warrant 48 of 2012 issued on the 2nd of February 2012, which reports, I'm prepared to assume reliably, on the information the latter gave regarding the arrangements he made to let the occupant of 47 Lucas Street into possession. It's clear that those arrangements post-date the plaintiff's mortgage. It appears that all of the tenancy or like arrangements are ones made without the plaintiff's knowledge or consent. Notwithstanding the giving of appropriate notices to the various occupants and service of the application, on the evidence before the court none of the occupants has vacated. None of them has taken up the opportunity to participate in this hearing by personal attendance or by submitting material in writing. It's appropriate that leave be granted to issue an enforcement warrant for possession of the land in question.
The application also seeks pursuant to rule 375 of the UCPR that the Registrar be directed to amend the particular enforcement warrant referred to above to include among the persons required to comply with the order "Ingrid Fjastad & Occupants of the Land". That would seem to be an appropriate amendment to have made. This is the only enforcement warrant that so far exists.
The draft order proffered, as the rules require in an application such as the present, seeks that the defendant and the respondent occupants of each of the properties pay the plaintiff's costs of and incidental to the application. I think it's clear enough that the defendant may be held responsible for paying the costs but it's not at all clear to me in respect of the actual occupants. That costs ought to be awarded against them.
In those circumstances, an order for costs will be made against the defendant. It is also ordered that the question whether the respondent occupants of each of the First Property, the Second Property and the Third Property must pay the plaintiff's costs of and incidental to this application is reserved against the possibility that the plaintiff seriously wishes to pursue the costs application, particularly should there be difficulties in the future.