Perpetual Trustees Victoria Ltd v Adcock
[2016] QDC 121
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- Unreported Judgment
- Perpetual Trustees Victoria Ltd v Adcock[2016] QDC 121
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Perpetual Trustees Victoria Ltd v Adcock[2016] QDC 121
Perpetual Trustees Victoria Ltd v Adcock[2016] QDC 121
DISTRICT COURT OF QUEENSLAND
CITATION: | Perpetual Trustees Victoria Limited v Adcock and Adcock [2016] QDC 121 | |
PARTIES: | PERPETUAL TRUSTEES VICTORIA LIMITED (respondent) And ROBERT THOMAS ADCOCK (first applicant) And MADONNA MARGARET ADCOCK (second applicant) | |
FILE NO/S: | D187/09 | |
DIVISION: | Civil | |
PROCEEDING: | Application | |
ORIGINATING COURT: | District Court, Ipswich | |
DELIVERED ON: | 18 March 2016 | |
DELIVERED AT: | Ipswich | |
HEARING DATE: | 18 February 2016 | |
JUDGE: | Horneman-Wren SC DCJ | |
ORDER: |
| |
CATCHWORDS: | MORTGAGES – MORTGAGEE’S REMEDIES – POSSESSION – where the applicants sought to have enforcement warrant stayed until a date specified by the court – where the plaintiff was granted recovery of possession of the property secured by the mortgage – where property was the applicant’s family home – where purpose of stay to permit settlement of a contract of sale over the property to be effected – where contract of sale between Applicants as the seller and Exchange Trades Pty Ltd as the buyer – where Mr Adcock a director of Exchange Trades Pty Ltd – where second mortgage not discharged where contract specified settlement date as being 60 days from 23 July 2015 – where time was of the essence – where evidence of recent steps taken by Applicants to be able to discharge second mortgage and permit settlement to occur – where application for stay of 28 days granted – where costs awarded against the Applicants on standard basis | |
SOLICITORS: | Kemp Strang Lawyers for the Respondent Lynch Andrews Lawyers for the Applicants | |
HIS HONOUR: This is an application by Robert Thomas Adcock and Madonna Margaret Adcock against whom judgment was entered by default in this court on 23 February 2010 in respect of moneys owing under a mortgage to the plaintiff, Perpetual Trustees Victoria Limited by which judgment – the ‑ ‑ ‑
MR ANDREWS: Was your Honour looking for the date of the judgment?
HIS HONOUR: No. I was looking for the judgment.
MR ANDREWS: I believe it’s document 7, your Honour, 19 February 2010, if that’s of assistance.
HIS HONOUR: Thank you. It’s just a very old file. It’s a bit hard to follow.
By which judgment the plaintiff to the action was granted recovery of possession of the property secured by the mortgage being property situated at 295 Whitehill Road, Flinders View in Queensland. That property is the residential property of Mr and Mrs Adcock and their family. The proceedings have a considerable history. Apart from the judgment entered in February 2010 to which I have referred, enforcement warrants for the possession of the land have been issued from time to time, going back several years.
The most recent of those warrants was issued by this court on 19 May 2015. It entitles the plaintiff to recover possession of the land and directs the enforcement officer to enter upon the land and take possession of it and deliver that possession to the plaintiff. The warrant is to be executed tomorrow morning, 19 February 2016, and notice has been provided to the Adcocks that they are to have vacated the premises by 9 am on that date, otherwise they will be forcibly evicted from it. Their application is to stay the execution of that warrant for, it is said, until further order of the court or until a date specified by the court.
In his affidavit, Mr Adcock, at paragraph 41, states that he and his wife are seeking a stay of execution of enforcement hearing warrant for a period of at least one month. The purpose for seeking the stay it is said is to permit the settlement of a contract of sale over the property to be effected. That contract of sale was entered into between Mr and Mrs Adcock as the sellers and a corporation, Exchange Trades Pty Ltd, as the buyer on 23 July 2015. That date is of some significance. Ms Goodyear, a paralegal employed by the plaintiff’s lawyers deposes to the fact that the execution of the warrant issued on 19 May 2015 was scheduled to be effected on 24 July 2015, that is, the date subsequent to the date upon which this contract was entered into. She deposes to the fact that having been provided with a copy of that contract, on 23 July 2015, the plaintiff deferred the eviction.
Exchange Trades Pty Ltd is an entity of which Mr Adcock is now one of two directors and, until 1 February 2016, had been the sole director at least for a period of time, the extent of which is unclear on the material, although I am informed by Mr Rooks, who appears for the plaintiff, that Mr Adcock ceased being a director of the company on 23 July 2015 and was reinstated as a director on the 1st of December 2015. Mr Adcock also owns five of the 10 issued shares in the company. Mr Adcock deposes to the fact that the contract is on its face unconditional and is unconditional. That is not all that can be observed about the contract.
The contract specified a settlement date as being on or before 60 days from the date of the contract, that is, 60 days from 23 July 2015. By clause 6.1 of the contract, time was of the essence. There is no evidence before me of – or any direct evidence before me of the contract having been affirmed although one might infer, given that the parties do not contest otherwise, that it has been. It was an essential term of the contract that any instrument necessary to release any encumbrance over the property be provided at settlement so that the requirement under clause 7.2 that the property be sold free of all encumbrances be met.
Mr Adcock deposes to the fact that there is a second mortgage over the property in favour of an entity called Reliable Credit Proprietary Limited. The evidence deposes to very little about the details of that mortgage. It is said that a Mr McAdam with whom Mr Adcock deposes not having had any contact with for a number of years is the person with whom the Adcocks dealt in respect of that mortgage. Mr Adcock deposes to having tried for a number of months, although within what period is not said, to attempt to contact Mr McAdam, who was a director of Reliable Credit Proprietary Limited, and had been unable to do so.
More recently, Mr Adcock’s now solicitors have had some contact with him and it seems that steps are being taken in order to ascertain the amount owed under the second mortgage so that it might be discharged. Although it must be said, on the state of the evidence before me, that those arrangements are loose at best and do not give one much confidence that those matters will be ascertained quickly. Mr Andrews, who now represents Mr Adcock, makes some submissions concerning the fact that the Adcocks were unrepresented in entering into that contract and were unrepresented up until the 8th of February 2016 in respect of it. To my mind, that makes very little difference.
The contract, as I said, was entered into with a corporation of which Mr Adcock was a director. It was entered into in circumstances in which the enforcement warrant over the property was to be executed the following day. The fact that he was unrepresented and Mrs Adcock was unrepresented is, to my mind, neither here nor there. The contract goes on to provide by way of special conditions that it was conditional upon the sellers remaining as occupiers to the date of settlement and for a period of six months after the date of settlement, paying rental of $600 per week.
One immediately notes that that period of time itself, that is, six months beyond the two month time for period – time period set for settlement, would now have almost passed. There is evidence that a deposit of $95,000 is held by the agents for the sellers of the property. It seems that that evidence was provided at the request of solicitors acting on behalf of the plaintiff company by a request made, it seems, on the 13th of January 2016.
Minutes of a meeting of directors of Exchange Trades Proprietary Limited, held on 1 February 2016, record that the directors – that is, Mr Adcock and Mr Lombardo, who became a director again on that date – reaffirmed their intention to continue to subdivide and develop the property at 295 Whitehill Road on a joint venture basis as previously agreed and the company would complete the development.
It would appear that notwithstanding the issuing of a number of enforcement warrants from time to time since the judgment was obtained that execution of those warrants has been put off on the basis that arrangements satisfactory to the plaintiff had been either entered into and/or met by the Adcocks.
In that regard, Mr Rooks, who appears for the plaintiff, informs me that Mr and Mrs Adcock would come in and out of arrears from time to time. In that sense, arrears is to be understood as being an accounting entered into separately from the entitlement of the plaintiff to the full value under its judgment – under the judgment in its favour. In Quaresmini v Perpetual Trustees Company Limited and Another [2011] QCA 74, Justice of Appeal Fraser observed in respect of the discretion to stay an enforcement of a warrant of possession under rule 895 of the UCPR that the discretion is unfettered.
In respect of that particular case, his Honour observed that it was not an appropriate case for the exercise of the discretion, there having been unchallenged evidence at the hearing in the trial division, that the principal amount of the loan fell due on a particular date and remained unpaid. There was no evidence adduced to suggest that the appellant in those proceedings might remedy his then existing default or that he might thereafter keep the account up to date. His Honour observed that it was hardly to be expected that the Court would stay enforcement of a regularly entered judgment in those circumstances.
The most recent indulgence provided by the plaintiff, who is in fact the judgment creditor, was on the 14th of January 2016, when in correspondence to solicitors then acting for the purchasers under the contract, a deferral of the execution of the enforcement warrant which had been planned for – it seems, the 14th January 2016 was deferred by setting a new eviction date of the 19th February 2016 to permit the settlement of the contract to be effected within 30 days, that is, by 15 February 2016. That, of course, did not occur.
Notwithstanding that the application is brought at the 12th hour to stay an execution due to take place at 9 o’clock tomorrow morning, I am, in the circumstances, prepared to grant the stay for the following reasons.
There has been, on the evidence before me, notwithstanding the issue of a number of enforcement warrants over time, circumstances whereby their execution has been delayed because arrangements have been entered into, and one presumes, met by the Adcocks from time to time, as reflected in Mr Rooks telling me that they have come in and out of arrears from time to time. There is evidence before me in relation to the recent steps that have been taken to contact Mr McAdam and to secure or to put into place arrangements whereby the second mortgage will be able to be discharged to permit the settlement of the sale to take place.
As I have said, on the loose arrangements that are deposed to, one does not have great confidence in relation to those arrangements to be put in place, but one presumes that the circumstances of the threat of a further execution of the enforcement warrant will provide sufficient motive to Mr Adcock and Mrs Adcock, and those acting on their behalf, to ensure that those circumstances are put in place. In contrast to the circumstances to which Justice of Appeal Fraser referred to, there is, in my view, evidence to suggest that the Adcocks may remedy the situation if the stay of the execution is provided. I would observe, however, that whilst it would be a matter for any other judge on any subsequent application to exercise his or her own discretion, it would seem to me that circumstances would need to be quite compelling in order that any further stay would be entertained by the Court. That, however, as I say, would be a matter for a different judge on a different day.
Given that the contract entered into was due to have been settled within 60 days of the 23rd of July 2015, given that a further indulgence was granted to allow settlement within 30 days of the 14th of January 2016, I am of the view that any stay of the execution of the warrant granted by this Court should be for a period of no more than 28 days. If the settlement of the contract is unable to be effected within that period of time, that will provide the Adcocks with the capacity to ascertain that fact and to exit the property under their own volition prior to the expiration of that time or the expiration of a further eviction date which is notified to them.
That would avoid the circumstances referred to by Judge Robin in this Court in Perpetual Trustee and Davies v Williams (2011) QDC 160 wherein his Honour observed that a consequence the execution of an enforcement warrant is that property – the goods and chattels of the persons in occupation are also moved out, although they form no part of the security of the judgment creditor. Those circumstances, as I say, will be able to be avoided by the Adcocks if they are unable to effect a settlement. As I have said, Mr Adcock is a 50 per cent shareholder in and director of the purchaser company. He will know, one suspects, very easily whether or not settlement will take place in that period of time.
In the circumstances, I grant a stay of the enforcement warrant until 5 pm on Friday, 18 March 2016.
Anything further?
MR ANDREWS: Nothing from me, your Honour. No.
MR ROOKS: Your Honour, you raise that any further stay application would be needed to be considered by another judge at a further point. I’d like to submit that perhaps an order be made that no further stay applications can be made if the defendant has been unable to pay the amount owing to the plaintiff.
HIS HONOUR: Pay the amount owing to the plaintiff under the debt – the judgment debt?
MR ROOKS: I don’t believe there’s a judgment debt. Perhaps ‑ ‑ ‑
HIS HONOUR: Sorry. Didn’t – sorry. That’s why I was looking for the judgment before. Sorry. The judgment was just for the recovery of possession.
MR ROOKS: I believe so, your Honour.
HIS HONOUR: Yes. That’s quite right. I’m sorry. Yes. So it’s not a judgment – you’re not a judgment creditor at all. You have a plaintiff for the judgment in respect of recovery of possession.
MR ROOKS: Exactly right, your Honour.
HIS HONOUR: Yes. All right. Well, my reasons will be amended to remove the expression “judgment creditor”. But I don’t think that I can fetter the capacity of a party to make such an application in the future.
MR ROOKS: Okay, your Honour.
HIS HONOUR: Nothing further, Mr Rooks?
MR ROOKS: Apart from costs, your Honour.
...
HIS HONOUR: Although Court costs ordinarily follow the event and Mr and Mrs Adcock are the applicants in these proceedings, in my view, the plaintiff respondent ought have its costs on the standard basis in this matter. Whilst the Adcocks have had success in the sense that they have attained an indulgence, it is, indeed, an indulgence which they have attained in the circumstances where discretion has been favourably exercised for the reasons which I have already related. In my view, there are matters which have led to the exercise of that discretion which are included in the affidavit of Mr Adcock and, to a lesser extent, that of Mr Andrews, which have only been deposed to today and which were not matters addressed in earlier correspondence to the solicitors for the plaintiff. In those circumstances, it was entirely appropriate, in my view, for the plaintiff to resist the application and, in light of the indulgence granted, it seems to me an appropriate exercise of the Court’s discretion to order that the defendant applicants pay the respondent plaintiffs costs of and incidental to today’s proceedings on the standard basis.
Anything further?
MR ANDREWS: No, your Honour.
HIS HONOUR: Adjourn the Court. Thank you.