RHG Mortgage Corporation v Sava
[2012] QSC 96
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- RHG Mortgage Corporation v Sava[2012] QSC 96
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RHG Mortgage Corporation v Sava[2012] QSC 96
RHG Mortgage Corporation v Sava[2012] QSC 96
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
ATKINSON J
No 8983 of 2010
RHG MORTGAGE CORPORATION | Plaintiff |
and | |
TREVOR COLIN SAVA | Defendant |
BRISBANE
DATE 03/04/2012
ORDER
HER HONOUR: The defendant in this matter is Trevor Colin Sava. He appears for himself on this application.
His application contains five paragraphs, and is as follows:
"(1)Under rule 907 of the Uniform Civil Procedure Rules, the applicant be granted leave to have the enforcement warrant, number 381 of 2011, set aside due to plaintiff knowingly misleading the defendant for three months on criteria to avoid enforcement during its execution contrary to section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth).
(2)To rule on the criteria to avoid further enforcement as plaintiff has misled on this.
(3)To rule on plaintiff's regulatory conduct for referral to regulatory bodies.
(4)Plaintiff to pay eviction costs.
(5)Plaintiff should pay costs of the defendant."
The primary application is therefore under rule 907 of the Uniform Civil Procedure Rules. Rule 907 provides:
"(1)In relation to an enforcement warrant for a non-money order, a person affected by the order or another person affected by the warrant may apply to the court to set the warrant aside or to stay enforcement at any time."
(2)The filing of the application does not stay the operation of an enforcement warrant."
It can be seen that Mr Sava's application is not for a stay of the enforcement warrant, but to have it set aside. That application may be made under rule 907 at any time, and he is clearly a person affected by the warrant.
The circumstances which led to the warrant are set out in decision made by me ex tempore on 8 November 2011. On that day, I made five orders which were:
"(1)The defendant's [Sava's] application filed 29 September 2011 is dismissed.
(2)The defendant's counterclaim is struck out.
(3)The defendant pay to the plaintiff the amount of $293,483.77, including $29,426.88 interest to today.
(4)The plaintiff recover possession of the land described as Lot 2, on Building Unit Plan 4648, situated in the county of Canning, Parish of Mooloolah, being the whole of the land contained in Title Reference Number 16232226.
(5)Without prejudice to the plaintiff's entitlements pursuant to the loan and mortgage, the defendant pay the plaintiff's costs of the proceedings, including the costs of this application."
There is no need for me to repeat my reasons for that decision which were reported in RHG Mortgage Corporation Ltd v Sava [2011] QSC 372.
Essentially, the claim was for a debt owing pursuant to a loan agreement and mortgage. RHG Mortgage Corporation Ltd (RHG) was the mortgagee of the land, and the defendant, Mr Sava, was the mortgagor. The loan was in default. Various payments had been made, but the loan remained in default, and pursuant to the mortgage, the plaintiff RHG became entitled to recovery of possession, and the whole of the amount owing under the loan. Hence, those orders were made by me on 8 November 2011.
Mr Sava's basis for seeking to have the enforcement warrant set aside is contained in affidavit material filed by him today. Essentially, he asserts in that affidavit material, and it is supported by documentation, that he was informed that he would have to pay the whole amount owing under the judgment which gave effect to the amount of the debt if he wished to have the enforcement warrant set aside or stayed.
Closer to the date when the enforcement warrant was to be executed, in fact, the day before, he was informed that if he paid a lesser amount, it might be possible to stay the warrant.
He asserts that this is misleading and deceptive conduct. What it appears to be in fact is a concession to allow him some more leeway: if he were to pay less, then the warrant would be stayed. That does not appear to be misleading or deceptive conduct. The fact that a mortgagee is prepared to grant a concession to a mortgagor, however limited that concession is, cannot mean that their behaviour prior to granting that concession is misleading and deceptive conduct.
In fact, it appears that yet again today Mr Sava is not able to offer any evidence that he is able to pay any of the debt, which has been the situation on each occasion that he has appeared in court. He has said that he could, if he were given more time, do so, but there does not appear to me to be any reason why, if he were able to provide such evidence, he would not have been able to provide it today.
I see no reason on the material before me to set aside the enforcement warrant. I do not intend to rule on any criteria to avoid further enforcement as obviously the enforcement warrant is valid and may be acted upon. I will not rule on the plaintiff's regulatory conduct, or make an order for referral to the regulatory bodies, as I do not regard that as appropriate in this case. There prima facie does not seem to have been any breach of the law, and obviously the plaintiff should not be required to pay eviction costs or costs to the defendant.
Therefore, I dismiss the application.
HER HONOUR: With costs.