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Tremco Pty Ltd v Thomson[2019] QDC 212

Tremco Pty Ltd v Thomson[2019] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Tremco Pty Ltd v Thomson & Ors [2019] QDC 212

PARTIES:

TREMCO PTY LTD (ACN 000 024 064)

(Plaintiff)

v

CAROLYN MARY THOMSON

(Defendant)

and

BENTLEYS (SUNSHINE COAST) PTY LTD (formerly known as PWA FINANCIAL GROUP PTY LTD) (ACN 010 527 876)

(First Third Party)

and

PETA WENDY GRENFELL

(Second Third Party)

and

ULRIKE BENDELE

(Third Third Party)

and

CHERYL BLINCO

(Fourth Third Party)

Enforcement creditor: Tremco Pty Ltd (ACN 000 024 064)

Enforcement debtor: Carolyn Mary Thomson

FILE NO/S:

3868/17

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

4 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2019

JUDGE:

Richards DCJ

ORDER:

Plaintiff’s application is allowed.

Defendant’s application is dismissed.

Order that the enforcement officer or a person authorised by the enforcement officer sell the property located at 26 Bellanboe Circuit, Pelican Waters, Queensland 4551 (Lot 326 on Survey Plan 185248) at the best price obtainable.

Order the defendant pay the plaintiff’s costs of and incidental to this application to be assessed on the standard basis if not agreed.  

CATCHWORDS:

ENFORCEMENT – RIGHT TO RECOVERY – where judgment was entered in this matter against the defendant for compensation together with interest and costs – where the defendant was unsuccessful on appeal and further costs were ordered against the defendant – where at the auction of the property obtained by enforcement warrant the sale did not reach the reserve price – whether the property should be sold at the best price obtainable under the Uniform Civil Procedure Rules 1999 (Qld) r 833.

STAY OF ENFORCEMENT – DELAY – where the defendant has two further court proceedings on foot without a timeline as to their resolution– whether the court should stay the enforcement warrant under the Uniform Civil Procedure Rules 1999 (Qld) r 819 to allow for pending actions to be heard.

Uniform Civil Procedure Rules 1999 (Qld)

COUNSEL:

Mr Alexander for the Plaintiff/Enforcement Creditor

Defendant/Enforcement Debtor appeared self-represented

SOLICITORS:

Mills Oakley for the Plaintiff/Enforcement Creditor

  1. [1]
    There are two applications before the court. The first is an application filed by the plaintiff/enforcement debtor pursuant to r 833(2) of the Uniform Civil Procedure Rules seeking an order that the property located at 26 Bellanboe Circuit, Pelican Waters be sold at the best price obtainable.  
  1. [2]
    There is a cross-application by the defendant and enforcement debtor, Carolyn Mary Thomson, seeking an order staying an enforcement pursuant to r 819 of the Uniform Civil Procedure Rules until completion of:
  1. (a)
    Supreme Court proceedings number 8958/19 ANZ v Thomson; and
  1. (b)
    Australian Financial Complaints Authority (AFCA) case number 661305.

Background

  1. [3]
    The plaintiff sued the defendant for monies owing by a company called Kadoe Pty Ltd to the plaintiff. The defendant was sued on the basis that she was a de facto director of the company.  After a nine day trial, judgment was entered against the defendant on 12 June 2018.  Compensation in the sum of $372,016.10 was ordered, together with interest and costs.  Interest in the sum of $66,877.55 was ordered on 21 June 2018. The defendant unsuccessfully appealed that decision and costs were ordered against her.   An enforcement warrant for seizure and sale of the land relevant to the judgment and order was issued by the court on 12 July 2018 and renewed on 18 June 2019.  On 19 September 2019 there was a public auction of the property but it was unable to be sold because it did not reach the reserve price.  The plaintiff therefore seeks an order pursuant to  Rule 833(2) of the UCPR that the property be sold at the best price obtainable.
  1. [4]
    Rule 833 of the UCPR states:

Sale at best price obtainable

  1. This rule applies if the enforcement debtor’s property has not been sold under rule 832. 
  2. An enforcement officer or an enforcement creditor may apply to the court for an order to sell property at the best price obtainable. 
  3. The application must be supported by an affidavit giving details of the required steps for sale that have been taken. 
  4. Unless the court orders otherwise, the enforcement debtor must be served with the application.” 
  1. [5]
    Ms Thomson was served and was present at the hearing of this matter. The property was advertised and an auction took place. A reserve was set in accordance with the valuation but unfortunately it did not reach the reserve price. It is not disputed that the necessary steps pursuant to r 832 have been followed and therefore r 833 is enlivened. 

Cross application

  1. [6]
    The defendant is seeking to stay enforcement under r 819 of the UCPR: 

Application to set aside enforcement

  1. An enforcement debtor or another person affected by an enforcement warrant may apply to the court to set it aside or to stay enforcement at any time.
  2. The filing of the application does not stay the operation of an enforcement warrant.” 
  1. [7]
    There has been little judicial consideration of r 833, however, it seems to be accepted by the parties that there exists an unfettered discretion to stay an enforcement warrant. The decision necessarily involves weighing the plaintiff’s right to recover, as best it can, the fruits of the judgment, against the likelihood of the stay resulting in advantage to both the plaintiff, by way of full recovery of the outstanding debt, and to the defendant, by way of preservation of the property. It follows that good reason would have to be shown to stay the enforcement warrant such that the prejudice suffered by the plaintiff as a result of the delay is justified.
  1. [8]
    There is currently a judgment debt of at least $452,990.28 plus costs outstanding in relation to this matter. The plaintiff, Tremco, has been chasing the money that it is owed from Kadoe Pty Ltd since 2010 when it stopped paying their invoices. The judgment in relation to that company was given on 27 February 2015. Whilst the judgment in relation to this matter has only been outstanding since June 2018 the debt is now 9 years old and it is understandable why Tremco is keen to at least obtain that part of the judgment that it is able to recover through the sale of the property.
  1. [9]
    The defendant on the other hand maintains that she has been negotiating with the ANZ bank in relation to mortgages on the property and other matters which she claims would nett her enough money to satisfy the debt and enable her to keep her property.
  1. [10]
    Ms Thomson deposes to the fact that on 12 October 2018 she and ANZ reached an agreement in relation to an ongoing dispute between her family and ANZ. She says it was agreed that ANZ would pay three creditors, one of which was the plaintiff, that a cash payment would be organised by ANZ for her husband and herself, that a consultant would be retained and paid for by ANZ to negotiate settlement amounts with the creditors, that the consultant would further be retained to determine if ANZ had any liability to pay Mr Thomson and herself compensation and what that quantum of compensation might be and that the consultant would be a consultant of her choice. She further understood that she would keep her property at 26 Bellanboe Circuit Pelican Waters with a reduced home loan amount and that ANZ would write off all facilities that she guaranteed for Kadoe Pty Ltd in any capacity.
  1. [11]
    To her affidavit she exhibited a number of emails between the plaintiff’s solicitor, ANZ and herself[1].  This does show that there were attempts made to resolve the matter by mediation between the plaintiff, ANZ and the defendant. However, negotiations seem to have broken down for a number of reasons. The bank and the defendant could not agree on a consultant to lead the meetings, the bank was only interested in a settlement if it was able to resolve all matters at once, the other creditors (excluding the plaintiff) were willing to attend any settlement conference but unwilling to participate. Ultimately, the conference did not take place.
  1. [12]
    By May of this year the plaintiff was given instructions to seek an enforcement warrant to sell the property at Bellanboe Circuit. In order to sell the property it needed to negotiate with ANZ about the release of mortgages as ANZ held two registered mortgages on the property. Ultimately it was decided between them that ANZ would allow the sale of the property and would split the proceeds of the sale 50/50 with the plaintiff. These negotiations took place without the defendant and did not have any bearing on the settlement negotiations that were said to have taken place in October of 2018. They related solely to the plaintiffs ability to sell the property.
  1. [13]
    The two actions that the defendant seeks to have heard before the enforcement warrant is further actioned are matters that are without a definite timeline.
  1. [14]
    The AFCA investigation must take place before anything can be heard in the Supreme Court. The application in the Supreme Court will proceed after the AFCA determination. If the bank succeeds in its application then the matter will stall again. There is insufficient material before the court to make any determination of the likely success of the action against the ANZ bank. Even accepting that there was a settlement in the terms as outlined by the defendant, it is clear that those settlement negotiations broke down fairly quickly and were unable to be reinstated. Further, Ms Thomson has indicated in her submissions that should she be unsuccessful against the bank she still wishes to sell the property privately to try to achieve a maximum return. Whilst that is understandable, it again delays the sale of the property and the ability of the plaintiff who has judgement in its favour to recover the proceeds of the judgment in part or in full. The plaintiff, Tremco, has been waiting for payment of the goods delivered for a very long time now. It is entitled to do what it can to recover the money. Whilst understandable that Ms Thomson would like to achieve the highest price possible for the property it is just not practical for this matter to be further delayed. 
  1. [15]
    The application to stay the enforcement warrant is dismissed. The defendant is to pay the plaintiff’s costs of and incidental to this application to be assessed on the standard basis if not agreed.
  1. [16]
    In relation to the plaintiff’s application pursuant to r 833(2) of the Uniform Civil Procedure Rules 1999 (Qld), it is ordered that the enforcement officer or a person authorised by the enforcement officer sell the property located at 26 Bellanboe Circuit, Pelican Waters, Queensland 4551 – Lot 326 on Survey Plan 185248, being all the land contained in title reference 50614150 which is the subject of the enforcement warrant for seizure and sale of property issued on 30 July 2018 and renewed on 18 June 2019 at the best price obtainable. 

Footnotes

[1] See CMT1 of her supplementary affidavit

Close

Editorial Notes

  • Published Case Name:

    Tremco Pty Ltd v Thomson & Ors

  • Shortened Case Name:

    Tremco Pty Ltd v Thomson

  • MNC:

    [2019] QDC 212

  • Court:

    QDC

  • Judge(s):

    Richards DCJ

  • Date:

    04 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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