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Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd[2016] QMC 25

Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd[2016] QMC 25

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd [2016] QMC 25

PARTIES:

Roma Transport Services Pty Ltd

(judgment creditor)

v

Radial Drilling Pty Ltd

(judgment debtor)

FILE NO/S:

M265/15

DIVISION:

Magistrates Courts

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

18 November 2016

DELIVERED AT:

Toowoomba Magistrates Court

HEARING DATE:

4 November 2016

MAGISTRATE:

G. Lee

ORDER:

The Registrar’s decision is varied as follows:

  1. (i)
    That part of the Registrar’s decision to approve possession fees totalling $1,220 is set aside.
  2. (II)
    In substitution therefore, the amount of possession fees approved is $1491.20      

CATCHWORDS:

Enforcement warrant – costs of execution – “possession fees” – meaning of “actual possession”   

Appeals – application for review of registrar’s decision – approach to be taken by court  

LEGISLATION

The following legislation was cited:

Supreme Court of Queensland Act 1999, ss 85 & 92, Schedule 1 Part 2

Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2

Uniform Civil Procedures Rules 1999, rules 748, 750, 782, 785, 791

The following cases were cited:

Dawson v Tanwan [1999] QDC 289

Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & Ors v Lessbrook Pty Ltd (in liquidation)(No 2) [2013] QSC 248

House v The King (1936) 55 CLR 499

Lessbrook Pty Ltd (in liq) v Whap et al [2014] QCA 63

Moors v Burke (1919) 26 CLR 265

National Australia Bank Limited v Clanford P/L [2002] QSC

Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210

Williams v Douglas (1940) 78 CLR 521

COUNSEL:

Mr F Jongkind (solicitor) for the applicant (enforcement officer) 

Ms S. Faunt (solicitor) for the plaintiff (judgment creditor)

SOLICITORS:

Frank Jongkind & Co for the applicant (enforcement officer) 

Wonderley & Hall, Solicitors for the plaintiff (judgment creditor

  1. [1]
    This is an application by an enforcement officer under rule 791 Uniform Civil Procedure Rules 1999 (UCPR) seeking a review of a registrar’s decision dated 22 September 2016 disallowing an item of costs claimed in the execution of a money judgment pursuant to Uniform Civil Procedure (Fees) Regulation 2009 (the regulations).
  1. [2]
    The application is opposed by the judgment creditor.
  1. [3]
    The matter was first mentioned before me on 27 October 2016 and adjourned for hearing on 4 November upon application by the enforcement officer. Directions were made that solicitors for the judgment creditor provide all communications between them and the registrar to solicitors for the enforcement officer by 2 November 2016. I was advised on 4 November 2016 that this had been complied with.
  1. [4]
    In addition to oral submissions during the hearing, the following material has been referred to in this application:
  • Application filed 14 October 2016.
  • Affidavits of the applicant (Robert George Ward) filed 17 October and 2 November 2016.
  • Affidavit of Ian Gilbert Dempster, solicitor for the judgment creditor, filed 26 October 2016.
  • Written submissions for the judgment creditor dated 24 October 2016.   

Background

  1. [5]
    On 4 February 2016 default judgment was entered in favour of the judgment creditor for $18,502.98 including interest and costs. Then on 22 March 2016, upon application by the judgment creditor, an enforcement warrant was issued with an expiry date of 21 March 2017.
  1. [6]
    The property named in the warrant was seized by the enforcement officer on 30 March 2016 and then placed in secure storage at Maktrans Qld Pty Ltd on 4 April 2016 where the enforcement officer alone retained the key[1]. 
  1. [7]
    The seized property was divided into 60 lots for auction on 17 June 2016. It consisted of mining exploration equipment including a 1998 Navistar International 4900 6 x 4 with compressor, crane, spool machine and a roll of drilling pipe, a Holden Rodeo Ute, the contents of shipping containers, two cable reel machines, boxes of tools and other various items[2].
  1. [8]
    On or around 20 July 2016[3] the Navistar International and associated equipment was sold after the auction to a Malaysian purchaser for $25,000[4].
  1. [9]
    On 5 August 2016 the enforcement officer lodged his report to the registrar and returned the warrant. In it he described actions taken and expenditure incurred by him in executing the warrant including a claim for “possession fees”. The proceeds of the execution amounted to $32,745[5].
  1. [10]
    Solicitors for the judgment creditor had made it known to the registrar prior to his decision that this claim was disputed[6]. I note also that the enforcement officer had been in direct contact with the solicitors for the judgment creditor on at least one occasion by email dated 25 May 2016 and that he had been copied in to an email dated 25 May 2016 from solicitors for the judgment creditor to the registrar putting him on notice that “additional storage charges or other costs arising from the [enforcement officers] error” was disputed[7]. 
  1. [11]
    On 19 August 2016 the registrar paid $16,211.24 out of the proceeds of execution to solicitors for the judgment creditor in part satisfaction of the judgment debt leaving sufficient funds in the court pending the resolution of the “possession claim”[8].     
  1. [12]
    By letter dated 22 September 2016 to the enforcement officer the registrar formally allowed all of the claims made except for the “possession fees” the subject of this application.
  1. [13]
    An amount of $11,626.60 was claimed for “possession fees” calculated on the basis of 122 days at $95.30 per day[9]. After citing Moors v Burke (1919) 26 CLR 265 and other authority[10], and after concluding inferentially that the enforcement officer was in “actual possession” as he had sole custody of the key and therefore entitled to claim possession fees, the registrar allowed a rate of $10 per day for the 122 days totalling $1,220 on the basis that:

…I have considered the nature of the property held, the fact that the property was held in a secure storage facility and not in the actual physical possession of the Bailiff, the sums expended by way of outlays for that secure storage facility; and the value of the property held as evinced by the total of sums achieved upon the sale of the property.

Upon consideration of these matters I am prepared to allow only a notional sum, per day, to take account of general care and consideration for being responsible for the seized goods. …       

  1. [14]
    The outlays of $2,775 for storage costs at Maktrans was allowed by the registrar. That was calculated on the basis of $25 per day from 4 April 2016 to 7 June 2016 and from 17 June 2016 to 1 August 2016[11] totalling 111 days.
  1. [15]
    In his report to the registrar the enforcement officer stated he would bear the intervening 10 days storage costs at Maktrans between 7 and 17 June 2016 due to an error on his part in advertising the auction date[12]. However, he has claimed 122 days for “possession fees” which, although not expressly stated in his report to the registrar, seems to include the 10 days between 7 and 17 June 2016. The enforcement officer sought to amend that claim at the hearing of this application to 111 days to coincide with the claim for storage outlays at Maktrans. I will return to this later.

The relief sought

  1. [16]
    The relief sought is:
  • Leave be granted to appeal the registrar’s decision to disallow in part the possession fees under rule 791 UCPR and that further directions be given as to the conduct of the application.
  • Alternatively, that the enforcement officer’s costs be assessed and a certificate be filed pursuant to rule 737 UCPR.

The Application

  1. [17]
    Rule 791 UCPR[13] provides:

791 Rehearing after decision of judicial registrar or registrar

  1. (1)
    A party to an application who is dissatisfied with a decision of a judicial registrar or registrar on the application may, with the leave of the court, have the application reheard by the court.
  1. (2)
    If the court grants leave, it may do so on condition, including, for example, a condition about—
  1. (a)
    the evidence to be adduced; or
  1. (b)
    the submissions to be presented; or
  1. (c)
    the nature of the rehearing.
  1. (3)
    This rule does not apply to a review under rule 742.
  1. [18]
    At the hearing on 4 November 2016, the parties proceeded on the footing that I consider the question of granting leave and if granted, to hear and determine the matter.
  1. [19]
    The reference to “registrar” in rule 791 is as defined in Schedule 4 UCPR:

registrar—

  1. (a)
    for chapter 4, part 7, division 3, see rule 130A; and
  1. (b)
    for chapter 9, part 4, see rule 313; and
  1. (c)
    for chapter 13, part 9, division 2A, see rule 522B; and
  1. (d)
    for schedules 1 to 3, means—
  1. (i)
    an assessing registrar within the meaning of rule 679; or
  1. (ii)
    a costs assessor appointed under rule 743L; and
  1. (e)
    otherwise, for a court, includes a deputy registrar of the court or person other than the registrar who discharges the duties and performs the functions conferred on the registrar under these rules.
  1. [20]
    “Registrar” for the purposes of rule 791 falls within paragraph (e) of that definition: see National Australia Bank Limited v Clanford Pty Ltd [2002] QSC 361 per Mullins J at 8 for a precursor of that definition comparing it with “assessing registrar” for the purposes of Chapter 17A UCPR.
  1. [21]
    Whilst in his application the enforcement officer sought alternative relief that costs be assessed and a certificate be filed under rule 737 UCPR, this was not agitated at the hearing. I note written submissions of the judgment creditor opposing that. I will proceed on the question of the primary relief sought only.
  1. [22]
    The parties did not draw my attention to any cases, nor could I find any, of a review of a registrar’s decision in respect of an enforcement officer’s claim under Uniform Civil Procedure (Fees) Regulation 2009. The approach taken in applications under rule 791 in a case involving a decision of a registrar to appoint a cost assessor in Chapter 17A UCPR was considered in Emily Kepa, for and on behalf of the estate and dependents of Frank Billy, deceased & ors v Lessbrook Pty Ltd (in liquidation)(No 2) [2013] QSC 248 per Henry J at 2[14]:

The rule provides no criteria guiding the discretion to grant leave. The discretion is therefore exercisable according to the nature of the case on a principled basis. See, for example, Smith v Ash [2011] 2 QdR 175 at [50]. Registrars, daily make many minor decisions delegated to them by law in the interest of the cost effective conduct of the Court’s business. As a matter of principle, the Court will be reluctant to interfere in that layer of decision making in the absence of good reason being shown for it to do so. As was observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:

“There is an onus on a person seeking to have a court set aside, or vary, a registrar’s decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar”           

  1. [23]
    It should be further noted that this application under rule 791 is seeking a review of the exercise of the registrar’s discretion to disallow the full claim for “possession fees”. As referred to in part by the Court of Appeal in Lessbrook Pty Ltd (in liq) v Whap et al [2014] QCA 63 at [18] the principles to be followed by a review court are set out in House v The King (1936) 55 CLR 499 at 504-505[15]:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide of affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Submissions on Preliminary Points

  1. [24]
    The judgment creditor submitted that the enforcement officer cannot challenge the registrar’s decision under this rule on the basis that he has no standing as a party to the proceedings leading to the default judgment. He has a mere commercial interest as opposed to a legal one[16].
  1. [25]
    The claim for “possession fees” is under Uniform Civil Procedure (Fees) Regulation 2009, reg 5, Schedule 2 Part 2 as it applied prior to 1 July 2016:   

Custody and possession of property

8 (1) Each bailiff left in possession of property—for each day, not more than95.30

  1. (2)
    If board and lodging are not supplied, actual and reasonable expenses incurred are at the discretion of the registrar.
  1. (3)
    The registrar may allow other actual and necessary payments made for the safe custody of property under seizure.
  1. (4)
    No fee is payable for the custody and possession of property under seizure if the property is not kept in the actual possession of the bailiff.  (my emphasis)
  1. [26]
    The word “party” is defined in the Supreme Court of Queensland Act 1991 (the Act) as meaning “a party to a dispute” (Schedule 5). It is broad in application. “Dispute” is not defined so must be given its natural meaning having regard to the context in which the word is used. Here, the dispute is about “possession fees”.  
  1. [27]
    The definition of “party” in the UCPR (Schedule 4) made pursuant to section 85 of the Act is of limited assistance. It refers to the definition in section 679 in Chapter 17A which includes as a “party” a person who is not party to a proceeding for the purposes of Chapter 17A.
  1. [28]
    The Uniform Civil Procedure (Fees) Regulation 2009, made by the Governor in Council by virtue of section 92 of the Act, does not have a definition of “party” although, the broad definition in the Supreme Court of Queensland Act 1991 would apply.
  1. [29]
    The enforcement officer is aggrieved by the registrar’s decision. While the enforcement officer is not a party to the proceeding in which default judgment was obtained, in my view he falls within the broad meaning of “party” for the purposes of seeking a review of the registrar’s decision regarding a dispute about “possession fees”.
  1. [30]
    This view is supported by the appeal rules to the Court of Appeal in Chapter 18 which apply by virtue of rule 785 to appeals by way of review under rule 791. Rule 750 (1) (Inclusion, removal or substitution of party) contemplates “inclusion or removal of a person (whether or not a party to the original proceeding) as a party to an appeal and [the Court of Appeal] may order that a person directly affected by the appeal be substituted as a party or included as a party”.
  1. [31]
    The next jurisdictional submission of the judgment creditor is that rule 782 which provides that subject to any Act, all appeals or cases stated in Part 3 of Chapter 18 (Other Appeals) apply to rule 791. The submission continues that the enforcement officer’s application is neither an appeal nor a case stated[17]. Rule 791(1) is worded in terms of a rehearing and rule 791(2) provides flexibility in the way in which it is to proceed. As referred to earlier, the scheme of the UCPR incorporates many of the appeal provisions applicable to appeals to the Court of Appeal to a rehearing under rule 791. I reject that submission. 
  1. [32]
    The judgment creditor’s alternative submission was that if this was an appeal, the procedures in rules 784 to 790 have not been complied with. I note that in compliance with rule 748 (Time for appealing) this application was filed on 14 October 2016 within 28 days of the registrar’s decision dated 22 September 2016. Rule 748 applies by force of rule 785 which also incorporates many other rules on appeal to the Court of Appeal “with necessary changes”. Submissions for the judgment creditor did not elaborate in which respects the rules had not been complied with[18]. I reject that submission.

Substantive Submissions 

  1. [33]
    The enforcement officer submits a number of grounds in support of this court granting leave to rehear the matter.
  1. [34]
    It is asserted that the registrar had various communications with the solicitors for the judgment creditor without affording the enforcement officer the opportunity of responding. Further, it is submitted, it is not known on the face of the registrar’s decision whether those communications affected his decision.
  1. [35]
    References were made to letters and emails between the solicitors for the judgment creditor and the registrar or his staff.
  1. [36]
    The first is a letter from solicitors for the judgment creditor to the registrar dated 5 May 2016[19] confirming a conversation that day between the writer of that letter and a court staff member (not the registrar). There is no reference to that letter being copied to the enforcement officer. In the 4th and 5th paragraphs it raises the question of whether the enforcement officer was in actual possession of the seized goods as required by reg 8 Uniform Civil Procedure (Fees) Regulation 2009 and asks that this be noted. At their request the enforcement officer had emailed those solicitors a summary of his ‘actual and anticipated costs”. That email is not in evidence.     
  1. [37]
    The next communication complained of is one dated 6 June 2016 from the solicitors for the judgment creditor to a court staff member seeking a response to their email of 25 May 2016 dealing with the rescheduling of the auction due to the enforcement officer’s error[20]. The enforcement officer had not claimed the 10 days storage fees at Maktrans and does not now seek “possession fees” for that time either. This exchange has nothing to do with the substantial dispute as to whether the seized goods were in the “actual possession” of the enforcement officer whilst stored at Maktrans. I do not accept that this exchange had any bearing on the registrar’s ultimate decision on the question of “actual possession” or the rate of $10 per day he allowed for that claim.
  1. [38]
    The next communication complained of is an email from the registrar to solicitors for the judgment creditor dated 9 August 2016 presumably in response to a letter sent by email dated 4 August 2016 from solicitors for the judgment creditor to the enforcement officer copied to the registrar[21]. Among other things the registrar said he needed clarification of the enforcement officer’s claims before making a decision. He noted their correspondence dated 5 May, 25 May and 6 June 2016 and invited submissions by 19 August 2016.          
  1. [39]
    By letter dated 11 August 2016[22] to the registrar solicitors for the judgment creditor reiterated that, in their view, as the seized goods were stored at Maktrans, the enforcement officer was not in “actual possession” and therefore not entitled to “possession fees”. The letter simply cites regulation 8 of the regulations and asserts that possession fees are not payable because the enforcement officer was not in “actual possession”. No cases were referred to. The letter also stated that the judgment creditor wanted to apply the moneys held to another judgment. It was submitted that this was an irrelevant consideration. There is no material before me to suggest this letter was given to the enforcement officer for comment.      
  1. [40]
    In his decision the registrar concluded that, as the seized goods were stored at Maktrans, they were not in the enforcement officer’s “actual physical possession”. He relied on authorities including Moors v Burke (1919) 26 CLR 499. The registrar allowed a “nominal” amount for possession fees of $10 per day for 122 day originally claimed.
  1. [41]
    It was submitted for the judgment creditor that the enforcement officer was not in “actual possession” of the seized goods because he placed them in storage at Maktrans as required by rule 831 UCPR which provides:

831 Storage before sale

  1. (1)
    Until sale, an enforcement officer must put seized goods in an appropriate place, or give them to an appropriate person, approved by the enforcement officer for the purpose.
  1. (2)
    The enforcement creditor is liable to pay any storage expenses but may recover them as costs of enforcement.
  1. [42]
    It was submitted that he was not in complete control of those premises to the exclusion of others although no evidence was adduced to support that. Reference was made to a definition of “actual possession” in the Merriam-Webster Legal Dictionary as “direct physical custody, care or control of property” compared with “constructive possession”[23].
  1. [43]
    On the other hand, in citing Thomas v Metropolitan Housing Corporation Ltd [1936] 1 All ER 210, the enforcement officer submitted that possession of keys to premises alone is sufficient to constitute “actual possession”. In that case the landlord’s agent had obtained possession of the keys to the property in the interval between the old tenancy finishing on the Friday and the new tenancy starting on the Monday. This was held to be “actual possession” for the purposes of the Rent Restrictions Act 1923 (UK)[24]. I think that case should be confined to its statutory context giving it a “somewhat wider meaning” as described by McGill DCJ in Dawson v Tanman [1999] QDC 289 at 22.       
  1. [44]
    For reasons that follow, I do not accept the judgment creditor’s submission and further conclude that the statement relied on in Moors v Burke by them at para [11] of their submissions do not apply on the facts of this case. I have regard to the detailed analysis of McGill DCJ in Dawson v Tanman of the meaning of “possession” and “actual possession” in a variety of statutory contexts.        
  1. [45]
    The evidence in this case is that the enforcement officer had sole custody of the keys for access to the seized goods at Maktrans. There is no evidence that others had access to the seized goods.
  1. [46]
    The question in Dawson v Tanman was whether an accused was in “physical possession” of a weapon within the meaning of the Weapons Regulation 1996. McGill DCJ at 22 considered notions of proximity and control (at 22) and accepted that the meaning of “possession” or any nuances of possession may vary in the context of each case.
  1. [47]
    At 23 in Dawson McGill DCJ considered the principle in Moors v Burke[25]:

Having actual possession means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it and so have manual custody when he wishes.

  1. [48]
    His Honour summarized the facts of that case which involved a quantity of wool found in a locker in a shed located on the Melbourne wharves under the control of customs. The locker was used by the defendant who was a customs officer along with one other customs officer. His Honour referred to a passage by Isaacs J in applying the above test:

The wool, placed in the locker by Moors, had ceased to be in his actual possession, because, though it was in the locker, the locker itself was not …a receptacle belonging to him or under his control, nor had he the exclusive means or right of opening it and obtaining the contents. Another customs clerk had equal right and power with Moors, and independently of him, to open the locker and take out its contents. The wool was, therefore, at the crucial moment, not in fact in the actual possession of Moors …

  1. [49]
    I respectfully agree with the analysis that follows by McGill DCJ in Dawson at 23:

It seems to follow that if the locker had been for the exclusive use of Moors he would have been regarded as having its contents in his “actual possession” even when he was not actually at the locker. The reference to “taking any further step” was obviously not a reference to a physical step. …                          

  1. [50]
    Note also the definition of “actual possession” in the Concise Australian Legal Dictionary (Lexis Nexis) citing Moors v Burke:

…actual possession does not include the case of a person who has put the property out of his or her present manual custody, in a place where any other person independently of him or her has an equal right and power of acquiring it …          

  1. [51]
    In Williams v Douglas (1949) 78 CLR 521 the defendant in a criminal matter had hidden gold under a bath. Others may have used the bath but the gold was carefully secreted. The defendant could have taken it into his physical custody at any time. It was held that actual possession is a wider concept than mere physical custody as it includes any case where the person alleged to be in possession has hidden the item effectively so that the person can take it into his or her physical custody when the person wishes[26].        
  1. [52]
    I note also a similar concept of “dominion” or “control” referred to by McGill DCJ in Dawson in a civil case of Charlesworth v Mills [1982] A.C. 231 referred to in Stroud’s Judicial Dictionary of Words and Phrases[27] which says “actual or physical possession of goods …does not require that the goods be grasped by the hand; the idea is satisfied if the goods are so placed that the possessor, or his agent, had the dominion and control over the goods so as to be able to prevent anyone else from removing or interfering with them”.
  1. [53]
    In my view, applying that analysis to the evidence in this case, the seized goods were in the “actual possession” of the enforcement officer.
  1. [54]
    At the beginning of this hearing, the enforcement officer through his solicitor conceded that he erred in claiming 122 days “possession fees” instead of 111 days. The registrar’s decision based on 122 days when it ought to have been 111 days was infected by the enforcement officer’s error. This alone in my view constitutes sufficient grounds for granting leave under rule 791 to rehear the matter.
  1. [55]
    Further, there is no material before me to suggest that the letters dated 5 May 2016 and 11 August 2016 from the solicitors for the judgment creditor to the registrar were given to the enforcement officer to enable him to respond. However, contrary to submissions in those letters, the registrar found in favour of the enforcement officer that he had “actual possession” within the meaning of regulation 8 so that a daily amount to be determined by the registrar is payable.
  1. [56]
    However, I note that the letter of 11 August 2016 also referred to keeping the funds to satisfy another judgment which the enforcement officer submits is an irrelevant consideration. It is not evident on the face of the registrar’s decision whether this had any bearing on his decision in arriving at the rate of $10 per day. In any event, the enforcement officer was not appraised of this submission and this constitutes another ground for granting leave.
  1. [57]
    Also, in terms of the test in House v The King (supra), the error of 122 days is an error of fact. This means that this court can rehear the matter, determine the matter afresh, and substitute its own decision on the material it has. The enforcement officer was not given the opportunity of responding to submissions made by solicitors for the judgment creditor to the registrar in the letters dated 5 May 2016 and 11 August 2016. This would ordinarily mean a breach of natural justice. For the same reasons in [56] above, as the enforcement officer was not appraised of the submissions about an alleged irrelevant consideration, this constitutes another ground for the court to consider the matter afresh.   

Disposition

  1. [58]
    I note that the enforcement officer executed the warrant on 30 March 2016 and took custody of the seized goods retaining the keys himself. In his report to the registrar dated 5 August 2016 the enforcement officer says “All property seized was secured by padlocks and all keys and vehicle keys were keep (sic) in the possession of the bailiff on his person and at his personal office (No persons had possession of the keys)”.
  1. [59]
    It appears to me that these goods were in his “actual possession” during those 4 days. They were not put into storage at Maktrans until 4 April 2016. It seems to me that he would be entitled to possession fees for those 4 days. It is not clear whether those 4 days were included in the 122 days originally claimed. Given that they were not in secure storage at Maktrans, it may be inferred that he had a greater responsibility or burden in looking after them. Among other things, arrangements would have had to be made to transport them to Maktrans by 4 April 2016. I propose to allow possession fees for those 4 days at $95.30 per day totalling $381.20.
  1. [60]
    The claim from 4 April 2016 for 122 days should be reduced to 111 days.
  1. [61]
    The next question is what daily amount the enforcement officer should receive. This is the primary matter the subject of review. The wording of regulation 8 makes it clear that the amount is a maximum amount and that the decision maker has a discretion to allow a lesser amount by reference to the words “not more than”.
  1. [62]
    As Henry J said in Lessbrook (at para [22] above), a court will be reluctant to interfere with a registrar’s decision in the absence of good reason for doing so. The onus is on the enforcement officer to make out a case or show a basis for setting aside the registrar’s decision.
  1. [63]
    The enforcement officer has provided two affidavits. The first one and a half paged affidavit simply says he lodged his report with the registrar enclosing it as an exhibit. He then says he received the registrar’s decision of 22 September 2016 enclosing it as an exhibit. Then he outlines what he contends about the registrar’s alleged failures. No further factual matters were included therein.
  1. [64]
    In his second two paged affidavit the enforcement officer itemises the property seized and that he offered it for auction on 17 June 2016 dividing the property into 60 lots. The major item was sold after auction to a Malaysian purchaser. He says he has been a bailiff for 35 years and has “often received payment for possession fees at the maximum rate and that he has never been limited to 10.49% of the maximum”.
  1. [65]
    I note in his report the enforcement officer has claimed 100 hours at $21.55 per hour for researching buyers and obtaining a valuation totalling $2155. He has claimed $1 per sheet for printing out emails ($100) as well as charging for emails sent by him ($100). He has claimed $100 for phone calls. This is in addition to statutory fees he has claimed such as an execution fee, levy fee, a fee for drawing up the advertisement and the first $200 of the poundage fee. He had engaged three others to help in setting up and running the auction whose accounts have been paid. All these amounts have been approved by the registrar.
  1. [66]
    The enforcement officer has not described or set out with sufficient clarity what work he has done relevant to his claim for possession fees to support a greater rate. It is clear from the registrar’s decision that with storage at Maktrans, the seized goods were in safe hands and that the enforcement officer would be burdened with little, if anything, to do in that respect.
  1. [67]
    In my view, the enforcement officer has not discharged the onus of showing why the registrar’s decision about the daily rate should be disturbed. The result is that possession fees for 111 days from 4 April 2016 at $10 per day comes to $1,110.
  1. [68]
    The total possession fees approved therefore are $1,491.20 ($381.20 + $1,110).
  1. [69]
    I order that the registrar’s decision be varied as follows:
  • That part of the Registrar’s decision to approve possession fees totalling $1,220 is set aside.
  • In substitution therefore, the amount of possession fees approved is $1,491.20. 
  1. [70]
    Should the parties wish to be heard on costs, I direct them to file and serve written submissions on costs by 4 pm 23 November 2016. The question of costs will be determined on the papers.

Footnotes

[1] Exhibit RW (2) affidavit of Robert Ward filed 17 October 2016 – the registrar’s decision dated 22 September 2016.

[2] Paras [3] & [4] affidavit of Robert Ward filed 2 November 2016.

[3] Exhibit RW 4 affidavit of Robert Ward filed 2 November 2016 – a purchase order dated 20 July 2016.

[4] Paras [5] & [6] affidavit of Robert Ward filed 2 November 2016. 

[5] Exhibit RW1 affidavit of Robert Ward filed 17 October 2016.

[6] Exhibits IGD 2, 4, 5, & 8 Affidavit of Ian Gilbert Dempster filed 26 October 2016. I will return to these later. 

[7] Exhibits IGD 3 &4 affidavit of Ian Gilbert Dempster respectively.

[8] Para [12] & exhibit IGD 9 affidavit of Ian Gilbert Dempster filed 26 October 2016.

[9] See Item 8, Part 2 (Bailiff’s fees) of Schedule 2 Uniform Civil Procedure (Fees) Regulation 2009. That rate applied prior an amendment from 1 July 2016 by Justices Legislation (Fees) Amendment Regulation (No 1) 2016 increasing the rate to $98.65 per day. 

[10] McKnight v Wooding (1935) VLR 30 and Williams v Douglas (1949) CLR 521.

[11] The enforcement officer bore Maktrans storage costs of the intervening 10 days as the auction had to be rescheduled due to a mistake by the enforcement officer. 

[12] Exhibit RW 2 affidavit of Robert Ward filed 17 October 2016 – the registrar’s decision dated 22 September 2016.

[13] In Part 3 (Other Appeals) of Chapter 18 (Appellate Proceedings); see also rule 792 emphasising that leave by a Magistrate is required against a decision of a registrar.

[14]That judgment was overturned on appeal on grounds unrelated to that statement which was implicitly accepted by the Court of Appeal: Lessbrook Pty Ltd (in liq) v Whap et al [2014] QCA 63. 

[15] Cited by the District Court in appeals under section 222 Justices Act 1886, for example Addo v Senior Constable Jacovos [2016] QDC 271.   

[16] Paras [2] & [3] submissions for the judgment creditor.

[17] Paras [4] to [6] submissions for the judgment creditor.

[18] Para [7] submissions for the judgment creditor.

[19] Exhibit IGD 02 affidavit of Ian Gilbert Dempster filed 26 October 2016.

[20] Exhibits IGD 04 & 05 affidavit of Ian Gilbert Dempster. Note that the “Change to Auction Date” form prepared by the enforcement officer was sent to the registrar and copied to the solicitors for the judgment creditor – see exhibit IGD 3.   

[21] Exhibits IGD 06 & 07 affidavit of Ian Gilbert Dempster.

[22] Exhibit IGD 08 affidavit of Ian Gilbert Dempster.

[23] Paras [8] to [15] affidavit of Ian Gilbert Dempster.

[24] See also Holt v Dawson [1940] 1 KB 46.

[25] (1919) 26 CLR 265 at 274; also referred to in the judgment creditor’s submissions at para [11].

[26] See also the Concise Australian Legal Dictionary (Lexis Nexis) definition of “actual possession”.

[27] 8th edition.

Close

Editorial Notes

  • Published Case Name:

    Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd

  • Shortened Case Name:

    Roma Transport Services Pty Ltd v Radial Drilling Pty Ltd

  • MNC:

    [2016] QMC 25

  • Court:

    QMC

  • Judge(s):

    G Lee

  • Date:

    18 Nov 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Addo v Senior Constable Jacovos [2016] QDC 271
1 citation
Jump To
Cite 1 - [2016] QDC 271
Charlesworth v Mills (1982) AC 231
1 citation
Jump To
Cite 1 - (1982) AC 231
Dawson v Tanwan [1999] QDC 289
5 citations
Jump To
Cite 1 - [1999] QDC 289
Cite 2 - [1999] QDC 289
Cite 3 - [1999] QDC 289
Cite 4 - [1999] QDC 289
Cite 5 - [1999] QDC 289
Holt v Dawson [1940] 1 KB 46
1 citation
Jump To
Cite 1 - [1940] 1 KB 46
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kepa v Lessbrook Pty Ltd (In Liquidation) (No 2) [2013] QSC 248
2 citations
Jump To
Cite 1 - [2013] QSC 248
Cite 2 - [2013] QSC 248
Lessbrook Pty Ltd (in liq) v Whap[2014] 2 Qd R 102; [2014] QCA 63
3 citations
Jump To
Cite 1 - [2014] QCA 63
Cite 2 - [2014] QCA 63
Cite 3 - [2014] QCA 63
McKnight v Wooding (1935) VLR 30
1 citation
Jump To
Cite 1 - (1935) VLR 30
Moors v Burke (1919) 26 CLR 265
4 citations
Jump To
Cite 1 - (1919) 26 CLR 265
Cite 2 - (1919) 26 CLR 265
Cite 3 - (1919) 26 CLR 265
Cite 4 - (1919) 26 CLR 265
Moors v Burke (1919) 26 CLR 499
1 citation
Jump To
Cite 1 - (1919) 26 CLR 499
National Australia Bank Limited v Clanford Pty Ltd[2003] 2 Qd R 79; [2002] QSC 361
2 citations
Jump To
Cite 1 - [2002] QSC 361
Cite 2 - [2002] QSC 361
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
1 citation
Jump To
Cite 1 - [2012] NSWSC 935
Smith v Ash[2011] 2 Qd R 175; [2010] QCA 112
1 citation
Jump To
Cite 1 - [2011] 2 Qd R 175
Thomas v Metropolitan Housing Corp. Ltd. [1936] 1 All E.R. 210
2 citations
Jump To
Cite 1 - [1936] 1 All E.R. 210
Cite 2 - [1936] 1 All E.R. 210
Tomko v Palasty (No 2) [2007] NSWCA 369
1 citation
Jump To
Cite 1 - [2007] NSWCA 369
Williams v Douglas (1940) 78 CLR 521
1 citation
Jump To
Cite 1 - (1940) 78 CLR 521
Williams v Douglas (1949) 78 CLR 521
2 citations
Jump To
Cite 1 - (1949) 78 CLR 521
Cite 2 - (1949) 78 CLR 521

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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