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Tremco Pty Ltd v Thomson[2020] QDC 1

Tremco Pty Ltd v Thomson[2020] QDC 1

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Tremco Pty Ltd v Thomson & Ors [2020] QDC 1

PARTIES:

TREMCO PTY LTD
(Plaintiff / Respondent)

v

CAROLYN MARY THOMSON
(Defendant / Applicant)

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 BENDLE
(Third Third Party)

and

CHERYL BLINCO
(Fourth Third Party)

FILE NO/S:

3868/2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

13 January 2020 (delivered ex-tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

13 January 2020

JUDGE:

Reid DCJ

ORDER:

  1. The defendant’s application is dismissed.
  2. Order that the defendant pay the plaintiff’s costs of and incidental to the application to be assessed on the standard basis. 

CATCHWORDS:

APPLICATION – CIVIL PROCEDURE – STAY OF AN ENFORCEMENT WARRANT – JUDICIAL DISCRETION – where the plaintiff sued the defendant and obtained judgment – where an appeal by the defendant was unsuccessful – where an enforcement warrant for seizure and sale of land relevant to judgment was issued by the court, and subsequently renewed – where there was a public auction of the property but it did not reach reserve price – where the plaintiff obtained an order that the property be sold at the best price obtainable – where the defendant brings an application to stay the enforcement warrant.

UCPR r 819, r 832, r 833

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255

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

COUNSEL:

M T de Waard for the plaintiff/respondent 

Defendant/applicant in person

SOLICITORS:

Mills Oakley for the plaintiff/respondent

Introduction

  1. [1]
    The defendant has applied for an order, pursuant to r 819 UCPR, that warrant number 136 of 2018 issued by the District Court at Brisbane be stayed until:
  1. (a)
    The plaintiff provides to the court, pursuant to Chapter 19 of UCPR and the procedures for the Enforcement of Warrants – Seizure and Sale issued by the Queensland Courts Executive on or about 17 July 2017:
  1. (i)
    A payout figure for the first registered mortgage number 711493458 in title reference number 50614150 that is not more than 1 month; and
  1. (ii)
    A payout figure for the second registered mortgage number 711493460 in title reference number 50614150 that is not more than 1 month old; and
  1. (b)
    Evidence from a registered valuer of the estimated best obtainable price the plaintiff can expect to realise from the sale, taking into consideration that the highest bid at the previous court auction held on 19 September 2019 was $600,000; and
  1. (c)
    The plaintiff prove to the court from these payout figures and evidence from the registered valuer, that the defendant has more than $10,000 equity in the property at 26 Bellanboe Circuit, Pelican Waters in the State of Queensland. 
  1. [2]
    She also seeks an order that only on the plaintiff satisfying the court that the defendant has more than $10,000 equity in the property, will the court make an order that the court appointed bailiff can auction the defendant’s equity in the property at the first available date.
  1. [3]
    I have concluded that the application is misguided and ought be dismissed for the reasons which follow.

Background

  1. [4]
    The plaintiff sued the defendant and obtained judgment in the amount of $372,016.10 plus interest pursuant to s 58 of the Civil Proceedings Act, pursuant to a judgment of Porter DCJ QC of 12 June 2018.  It is unnecessary to consider the details of the judgment but in essence His Honour found that the defendant was, at relevant times, a de facto director of a company which incurred significant indebtedness to the plaintiff and consequently, the defendant was liable to the plaintiff in the amount I have earlier set out.
  1. [5]
    His Honour consequently found that the defendant was liable to the defendant for at that indebtedness. Subsequently, the plaintiff also obtained judgment for interest and for costs. The effect of such matters was that the defendant obtained the judgment against the defendant for at least the sum of $452,990.28 plus costs.
  1. [6]
    The defendant unsuccessfully appealed against that decision and further costs were ordered against her.
  1. [7]
    An enforcement warrant for seizure and sale of the land relevant to the judgment was issued by the court on 13 July 2018. It was subsequently renewed. On 19 September 2019 there was a public auction of the property by the court but it was unable to be sold because it did not reach the reserve price. I understand from the material the highest unsuccessful bid was in the sum of $600,000.
  1. [8]
    Subsequently, before Richards DCJ, the plaintiff sought and obtained an order pursuant to r 833(2) of the UCPR that the property be sold at the best price obtainable.  Her Honour also ordered that the current defendant pay the plaintiff’s costs of and incidental to the application before Her Honour to be assessed on the standard basis. 
  1. [9]
    That proposed auction, with the property to be sold at the best price obtainable, has been set down for 30 January 2020. As I have said, the defendant now seeks an order staying that enforcement warrant.
  1. [10]
    Many of the grounds on which the defendant now relies are grounds that were unsuccessfully raised by her before Richards DCJ. It is of some importance therefore to examine her Honour’s reasons. Her Honour accepted there was an unfettered discretion to stay an enforcement warrant pursuant to r 832 UCPR and that in exercising that discretion it was necessary to weigh the plaintiff’s rights to recover as best it can the fruits of the judgment in its favour 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 subject property. Her Honour said:

“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. [11]
    Her Honour noted that the defendant maintained before her Honour that she had been negotiating with the ANZ Bank in relation to mortgages on the property which she claimed would net her enough money to satisfy the debt of the plaintiff and enable her to keep the property.
  1. [12]
    Her Honour referred to the fact that the defendant deposed that on 12 October 2018 she and the ANZ Bank had reached an agreement in relation to an ongoing dispute between her family and the bank and said it was agreed that ANZ would pay three creditors, one of which was the plaintiff. Her Honour noted that the defendant exhibited a number of emails between the plaintiff’s solicitor, ANZ and herself. In relation to these matters her Honour said:

“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. [13]
    Her Honour referred also to proceedings being undertaken by the defendant involving both the Australian Financial Complaints Authority and Supreme Court proceedings number 8958 of 2019 between ANZ and the defendant. Her Honour said of these matters:

“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]
    Her Honour also held that there was insufficient material to make any determination that the likely success of the action against the ANZ Bank, and noted also that the defendant indicated that should she be unsuccessful against the bank, she still wished to sell the property privately to try to achieve the maximum return. Her Honour said that while this was 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”.
  1. [15]
    Her Honour noted that the plaintiff had been waiting for payment for a very long time, which of course cannot be disputed, and said that “it is just not practical for this matter to be further delayed”. It appears to me that much of what her Honour determined is sought to be re-litigated by Ms Thomson in proceedings before me.
  1. [16]
    The plaintiff’s counsel in his submissions, noted that this is the second time that the defendant has brought an application to stay an enforcement warrant. After noting the background of the matter, counsel noted observations of Derrington J, with whom Campbell CJ and Kelly J agreed in JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255, that a plaintiff having succeeded is entitled to the fruits of its judgment unless good reason is shown to the contrary. 
  1. [17]
    Counsel also noted that the defendant appeared to be pursuing the new application on what was described as a mistaken belief that the plaintiff had somehow not complied with relevant law relating to the sale of the property. In particular, he noted the defendant’s reliance on emails concerning payout figures of the mortgage, and the alleged failure of the plaintiff to have provided these figures to the Court.
  1. [18]
    In this regard, the defendant referred in particular to an email from the Senior Deputy Registrar of the District Court at Maroochydore of 1 July 2019 (see pps 2 24/25 of exhibits to the defendant’s affidavit filed on 8 January 2020). That email related to correspondence concerning a requirement that the plaintiff provide details of mortgage payout figures before the property of the defendant could be sold.
  1. [19]
    The plaintiff’s solicitor had advised the Court that agreement had been reached with the ANZ Bank about the payout figure, but that such agreement was confidential. The deputy senior registrar, in his email of 1 July, advised that the plaintiff “must supply” the relevant payout figure.
  1. [20]
    Subsequently, the solicitors and the bank, by emails of 4 July, and 8 July respectively (at pages 23 to 24 of the exhibits to the defendant’s affidavit filed on 8 January 2020) confirmed that “The agreed payout figure for the ANZ mortgage is 50 per cent of the (net) sale proceeds.”
  1. [21]
    Her Honour Judge Richards recognised this fact at paragraph 12 of her judgement of 18 October 2019.
  1. [22]
    Counsel for the plaintiff submitted that the new application proceeds on two misconceived propositions, namely
  1. that the plaintiff has not already satisfied the registry of the information sought in the email concerning the payout figures; and
  1. that the property cannot be sold pursuant to r 833, absent the information sought by the registry in the email, being that of 1 July 2019 from the deputy senior registrar to the plaintiff’s solicitors, Mills Oakley, earlier referred to.
  1. [23]
    That email of course preceded the unsuccessful auction which preceded the judgment of her Honour Judge Richards to which I earlier referred. It resulted in the plaintiff, and the bank advising of the payout figure, being 50 per cent of the net proceeds of sale.
  1. [24]
    Counsel for the plaintiff submitted that for the defendant to now suggest that the relevant information had not been provided, was factually incorrect. I accept that to be so. It does not seem to me that a requirement, if there would be one, that the Court be provided with the payout figure of the mortgages requires that there be an agreed dollar sum. An agreement of the kind reached, namely to receive 50 per cent of the net proceeds of the sale constitutes a “payout figure”, which crystallises only upon the sale of the property.
  1. [25]
    This is readily apparent when the reason for the process envisaged is considered; namely to ensure the Court is not left with unrecovered costs of sale resulting from a sale where only the full or partial payout of a registered mortgagee is covered by the sale price, and there is no payment made to a judgment creditor, and nothing to meet the costs of the sale incurred by the Court.
  1. [26]
    In other words, the purpose of the provision concerning payout figures and valuations is to protect the Court and the creditor, and not provide a scheme entitling the debtor to restrain the sale merely because of an inconsequential failure to comply with some provision of the sale of property under a warrant. But, in any case, the information was given to the Court prior to the initial unsuccessful action.
  1. [27]
    Furthermore, counsel for the plaintiff submitted in my view, again correctly, that the information sought in the email relates only to auctions being conducted pursuant to r 832 of the UCPR and not to auctions conducted under r 833, without a reserve price.  Such a sale is not conducted under the same stipulations as those conducted pursuant to r 832.  Since a sale conducted pursuant to r 833 does not have a reserve sale, but is a sale at the best price obtainable, consistent with the order of Judge Richards, the information requested by the registrar in the email relating to a sale under r 832 is not relevant. It has, in any case, been provided for the reasons I have outlined.   
  1. [28]
    I do note however that in the past valuations have been obtained and provided to the registry. And as I have said, details of the payout figure under the mortgage have been provided to the registry.
  1. [29]
    In the circumstances there seems no demonstrated reason why I ought exercise my judicial discretion to stay the auction arranged for 30 January. The defendant has simply failed to show good reason why the enforcement warrant should not proceed.
  1. [30]
    In so determining, I am influenced by much the same factors as influenced the determination by her Honour Judge Richards. In particular, the significant delay in the receipt of the indebtedness by the respondent, the fact that the defendant has been unsuccessful both at trial and appeal, the fact that proceedings by her against the ANZ Bank in the Supreme Court or her complaint to the Australian Financial Complaints Authority, are uncertain of success, and that there is no demonstrable timeline to indicate when she might recover anything in respect of either of those proceedings, in my view justify the court in allowing the auction to proceed.
  1. [31]
    It is, of course, understandable that the defendant is, or may be, personally distressed by the result. Her house will be sold in circumstances where she feels very aggrieved by the actions of others, including her bank. The Court, however, must balance these matters against the distress caused to the plaintiff, and those who stand behind it, by reason of its being held out of a considerable debt since, it seems, 2010.

Order

  1. [32]
    I will therefore make an order as per the draft provided to me by the plaintiff’s counsel. The defendant’s application filed on 6 January 2020 is dismissed, and the defendant is to pay the plaintiff’s costs of and incidental to the application, to be assessed on the standard basis.
Close

Editorial Notes

  • Published Case Name:

    Tremco Pty Ltd v Thomson & Ors

  • Shortened Case Name:

    Tremco Pty Ltd v Thomson

  • MNC:

    [2020] QDC 1

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    13 Jan 2020

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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