Westpac Banking Corporation v Adhikari
[2023] QDC 169
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- Unreported Judgment
- Appeal Discontinued (QCA)
- Westpac Banking Corporation v Adhikari[2023] QDC 169
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Westpac Banking Corporation v Adhikari[2023] QDC 169
Westpac Banking Corporation v Adhikari[2023] QDC 169
DISTRICT COURT OF QUEENSLAND
CITATION: | Westpac Banking Corporation v Adhikari [2023] QDC 169 |
PARTIES: | WESTPAC BANKING CORPORATION (Plaintiff/Applicant) v RAJAN ADHIKARI (Defendant/Respondent) |
FILE NO: | BD No 1433 of 2021 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland in Brisbane |
DELIVERED ON: | 18 August 2023 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 August 2023 |
JUDGE: | Porter KC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – GENERALLY – where the plaintiff was the mortgagee of property owned by the defendant – where the plaintiff obtained default judgment a claim for repayment of the debt under the mortgage – where the plaintiff applies for a warrant for possession of the property – whether the court should grant an encrocement warrant for possession |
SOLICITORS: | MinterEllison for the plaintiff |
- [1]This is an application by Westpac Banking Corporation to obtain the issue of an enforcement warrant for possession. The issues that arise and the material necessary to make good the conditions for the issue of the enforcement warrant under the UCPR are addressed in the outline of argument filed by the bank for today’s hearing. I do not need to go into that in any detail. All I need to observe is that the solicitors and the bank have been more than usually careful in addressing the issues that arise under the rules, particularly under rule 913 and 914 for procedural requirements to issue enforcement warrants. The defendant, Mr Adhikari, did not appear. There were some people apparently in some form of possession. The bank dealt with that in a conservative way, as articulated in paragraphs 24 and following of the outline. None of those persons appeared to be heard in respect of the application for possession.
- [2]A Mr McCoy appeared. Mr McCoy was served out of an abundance of caution by the bank. He claimed and claims to be a purchaser of the property under a contract of sale. He had also lodged a caveat in April 2019, although, that caveat was subsequently removed. Mr McCoy appeared today. He complained of a spelling mistake in Mr Adhikari’s name, which is entirely irrelevant to whether I make the orders or not, so long as the spelling is corrected in the order.
- [3]However, his principal complaint is that the bank was refusing, in effect, to deal with him as buyer under the contract or to provide him with a settlement or payout figure. There is clearly a long history to this, but on the material before me, the fact is that the default Judgment stands. There has been no application by the registered proprietor, the respondent and mortgagor of the land to set aside that default Judgment. There is some debate on the material as to whether Mr McCoy presently has authority to represent Mr Adhikari, but it seems to me that is a moot point. The bank has obtained a Judgment for possession, and Mr Adhikari has never applied to set it aside.
- [4]It has to be remembered that in this situation, the bank has a Judgment for possession in respect of a registered mortgage. Mr McCoy has no registered interest superior to the bank’s, and no caveat is on the title in support of any claim he might have as having an equitable interest in the property. Further, although I cannot presently see how any of the things Mr McCoy says from the bar table leads to any arguable claim he might have against the bank, even he did have such a claim, granting an enforcement warrant for possession where there is an unappealed Judgment for possession (of a fairly orthodox kind) does not determine one way or the other any arguments Mr McCoy might have with the bank. If his grievances could be turned into a cause of action known to the law, presently, I cannot see what it would be.
- [5]But it is entirely irrelevant to the question before me, which is whether the procedures required for the issue of the enforcement warrant are met and where, if there is persons in apparent possession or occupation, I am satisfied that I should exercise the discretion as to order the enforcement warrant, notwithstanding that possession. As I said, for the reasons articulated in the bank’s outline, given the steps they have taken to seek to address the position of the present occupants, I am quite persuaded that it is proper for me to grant leave to issue the enforcement warrant.
- [6]For those reasons, I make orders in terms of the draft, which I initial, date and place with the papers. I should add this to my reasons. Mr McCoy sought to adjourn the hearing to be able to put on material to advance his arguments against the possession order. There was an attempt by the bank to serve the Judgment. It was certainly, seemingly, sent to his email address and to a post office box to which he had some contact. It was an email address which he uses to communicate with the bank. He does maintain, however, that neither then nor subsequently did he find out about the default Judgment. Even accepting that to be so for present purposes, notice was given by the bank to him on the 24th of July of this application, in some considerable detail I should say
- [7]Mr McCoy came today without any material. It seemed to me that he should have foreseen that if he wanted to put on material, he should have prepared it for today. Notwithstanding that, having given Mr McCoy an opportunity fully to articulate the basis of the propositions he would seek to develop into evidence, if I thought that that might give rise to some arguable answer to the application for the enforcement warrant to be issued, I would have granted the adjournment. But since, for the reasons I have given, it does not, the adjournment would have been entirely futile and a waste of time and costs.