National Australia Bank Limited v Commonwealth of Australia
[2012] QDC 325
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- National Australia Bank Limited v Commonwealth of Australia[2012] QDC 325
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National Australia Bank Limited v Commonwealth of Australia[2012] QDC 325
National Australia Bank Limited v Commonwealth of Australia[2012] QDC 325
[2012] QDC 325
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2665 of 2012
NATIONAL AUSTRALIA BANK LIMITED | Plaintiff |
and | |
COMMONWEALTH OF AUSTRALIA ALSO KNOWN AS VESTED OWNER OF THE TRUST PROPERTY OF THE TRUST REGISTERED AS QUEENSLAND INSTRUMENT NUMBER 713521263 | Defendant |
BRISBANE
DATE 18/10/2012
ORDER
CATCHWORDS | District Court of Queensland Act 1967 s 68, s 72 Residential Tenancies and Rooming Accommodation Act 2008 s 317 Uniform Civil Procedure Rules 1999 r 5, r 666, r 913, r 915 Leave sought to issue enforcement warrant for possession of mortgaged premises (that have occupants) pursuant to default judgement for possession - whether District Court has jurisdiction in the proceeding considered - mortgage debt appeared to exceed jurisdictional monetary limit, value of property unknown - signed Form 59A Request for Consent Order of Registrar confirming court had jurisdiction held to invoke courts "Consent jurisdiction"." |
HIS HONOUR: The Court makes an order in terms of the initialled draft in this unusual matter. It does not include a provision in the document proffered which, if it had not been deleted, would have provided, rather irrelevantly, that "The order of the Court is that...(3) costs pursuant to the terms of the mortgage."
Mr Buckingham explained that he wanted to be clear beyond doubt that the plaintiff’s costs of this proceeding came within its mortgage and were recoverable. One of the difficulties he faces is that the application before the Court filed on the 25th of September and proposed to be heard on that day, although that stamped date was deleted and replaced by 5 October 2012, specifically asked for the orders that have been made but also that "(3) There be no order as to costs."
I'm not inclined in those circumstances to accede to a request for an order for costs that on all previous intimations would not be sought.
Mr Buckingham submits that the Bank's mortgage would contain provisions protecting it as to costs. Doubtless that is so, but the instrument is not in evidence before the Court and it would be inappropriate, in my view, to act on even the most confident supposition along those lines.
On the 5th of October 2012 the matter was in the list of another Judge to be dealt with as an application on the papers. That is one without an oral hearing. What was sought was leave to issue an enforcement warrant pursuant to rule 913(2) and that an enforcement warrant be issued in respect of land at 16 Glenorie Drive, Highfields.
My judicial colleague considered that the application ought not to be dealt with as proposed without an oral hearing, endorsing on the order sheet that "In my view it is inappropriate to deal with this matter on the papers. The matter should be listed for oral hearing and notice of the hearing date given to the parties (including the apparent occupants of the property)."
Those steps have been taken. Rule 913(2) applies where it appears a person other than the one against whom the order is made is in occupation of land under a lease or tenancy; the Court's leave is required in some circumstances before an enforcement warrant can such for possession under rule 915. I have been prepared on occasions in the past to make orders in such circumstances on the paper. See Permanent Custodians Limited v Weeding [2012] QDC 135 and Pioneer Mortgages Limited v Uribe [2005] QDC 316.
My view was that the requirements of the Residential Tenancies Act 1994 section 187, and now section 317 of the Residential Tenancies and Rooming Accommodation Act 2008, ought to be attended to as well as those arising under the UCPR. The plaintiff has done that and established its entitlement to an order that it recover possession of the land at the above address over which it holds a mortgage.
The judgment entered by the Registrar on the 14th of August 2012 was that the plaintiff recover possession of the land, that there be no order for costs against the Commonwealth and, intriguingly, that "Nothing in paragraph 2 otherwise prevents the plaintiff from seeking to recover its costs in accordance with the terms of its mortgage as against the property", which may make Mr Buckingham's application for costs today otiose.
The basis for the Registrar's entering that judgment was a rule 666 Request for Consent Order of Registrar, which shows the plaintiff's solicitor and the defendant's in accordance with the usual form assuring the Court that all consenting parties had signed a form 59A, that no other party’s rights or obligations were affected by the order sought; that consenting parties had complied with all statutory requirements; that "The order sought is within the jurisdiction of the Court", that it did not call for the exercise of judicial discretion and that it didn't relate to a case on the supervised case list or commercial list or an otherwise managed case.
The Commonwealth is involved in the proceeding in a way made clear in the naming of it in the title "as vested owner of the trust property of the trust registered as Queensland instrument number 713521263 (formerly Wishingstone Investments Pty Ltd ACN 126 226 257 (deregistered) as trustee under instrument number 713521263).”
The Commonwealth in the role thus described is amenable to the plaintiff obtaining access to the premises for purposes of enforcing its mortgage. It has given assurance that it has granted no person rights of occupation. The name of one of those believed to be in occupation is known. He hasn't appeared when called outside the Court today, nor has anyone else appeared to oppose the making of the order.
I have placed in quotation marks part of the request for consent order document for a reason. It is not shown as in the case it ought to be in a proceeding in this Court, that the court has jurisdiction. See Startune Pty Ltd v Ultra-Tune Systems (Aust) Pty Ltd [1991] 1 Qd R 192; Matelot Holdings Pty Ltd v Gold Coast City Council [1993] 2 Qd R 168.
The District Court is one of limited statutory jurisdiction and can entertain a proceeding only if the District Court of Queensland Act 1967 enacts that it may. There is a monetary limit confining its jurisdiction to $750,000. See section 68(3).
Proceedings by a mortgagee such as the plaintiff may come under subsection (1)(b) either under (i) enforcing by delivery of possession any mortgage, et cetera, where the amount owing in respect thereof does not exceed the monetary limit or (xi) to recover possession of any land where the value of the land does not exceed the monetary limit. That value is in the usual case the Valuer-General's unimproved valuation under subsection(3)(b).
It is not known what is the amount owing under the plaintiff's mortgage or what is the value of the land. So far as the former is concerned alarm bells are set ringing by paragraph 4 of the statement of claim which identifies the money secured by the mortgage as a sum of $777,000 exclusive of obligations under three guarantee documents. The following paragraphs of the pleading indicate that demands have been served under those guarantees for sums in excess of $300,000, one and a half million dollars and $1.2 million. One is therefore driven to paragraph (xi), it would seem.
It is incumbent on the Court, in my view, to promote the interests of efficiency and it seems to me, after reflection, that the circumstances are ones in which on this the second hearing date the plaintiff might be granted the relief sought on the basis of what is called the “consent jurisdiction” under section 72 of the Act.
This contemplates plaintiff and defendant agreeing by memorandum signed by them or their lawyers, that the District Court sitting in a particular district shall have jurisdiction to try any action that might have been brought in the Supreme Court.
I have reached the conclusion that the form 59A serves the relevant function, although I am in doubt whether the signatories were cognisant that they were taking that step. It is clear that both parties wished this court to entertain and conclude the proceeding. Confirmation by the Full Court that in such circumstances a proceeding may culminate in a good judgment that to all appearances exceeds the Court's jurisdiction is found in Eyres v Butt [1986] 2 Qd R 243. The Court should be mindful of playing its part to implement the philosophy of the UCPR set out in Rule 5(1) and (2).
For those reasons the Court makes the order indicated.