National Australia Bank Limited v Victortylife Proprietary Limited
[2013] QDC 223
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National Australia Bank Limited v Victortylife Proprietary Limited[2013] QDC 223
National Australia Bank Limited v Victortylife Proprietary Limited[2013] QDC 223
[2013] QDC 223
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4449 of 2012
NATIONAL AUSTRALIA BANK LIMITEDPlaintiff
and
VICTORTYLIFE PROPRIETARY LIMITEDDefendant
BRISBANE
11.29 AM, TUESDAY, 21 MAY 2013
JUDGMENT
CATCHWORDS | Uniform Civil Procedure Rules 913 Out of abundance of caution, leave to issue an enforcement warrant against uncertainty as to the occupant of the premises and its title to occupy |
HIS HONOUR: This is National Australia Bank Limited v Vicortylife Pty Ltd 4449/2012. The plaintiff has filed an application proposed to be dealt with without an oral hearing seeking that leave be granted to it to issue an enforcement warrant pursuant to rule 913(2), and that such a warrant be issued authorising an enforcement officer to enter identified land and deliver possession of it and appurtenances to the plaintiff, without any order as to costs. The order sought is made under rule 915, but there are certain prerequisites set out in rule 913. One is that the person against whom the order is to be enforced is served with a copy of the order at least seven days before the warrant is issued. The other is that if a person other than the person against whom the order is made is in occupation under a lease or tenancy agreement, the enforcement warrant may issue only if the court gives leave.
The application is made because the plaintiff is uncertain as to the occupancy of the premises and, in particular, as to whether there is any tenancy agreement. It’s therefore elected to be cautious with regard to enforcing the default judgment entered against the defendant, which is the owner of the premises, on the 12th of February 2013. An occupancy check conducted last month indicated that a business called ISA Creative Fabrics was apparently in possession of the land. The owners of the business are the defendant’s directors. The business has remained in possession notwithstanding the plaintiff having sent on the 18th of April 2013 a letter demanding possession within 10 days. There’s no registered lease, and the plaintiff has certainly not consented. The business has been served with the judgment, as well as the defendant. The premises are not residential, and therefore the additional level of regulation now provided under section 317 of the Residential Tenancies and Rooming Accommodation Act 2008 referred to Pioneer Mortgages Limited v Uribe [2005] QDC 316 is irrelevant. The application has been served on both the defendant and the business. It is appropriate that the warrant for possession issue given that as of yesterday the business still remained in possession.
It is appropriate that orders be made in terms of the three paragraphs of the application filed the 7th of May 2013. I’ll date and initial a draft order supplied as required under the rules to bring about that result. And orders per initialled draft