DISTRICT COURT OF QUEENSLAND
CITATION: Perpetual Trustees Victoria Limited v Hogan [2021]
QDC 181PARTIES: PERPETUAL TRUSTEES VICTORIA LIMITED (Plaintiff) v HOGAN Defendant FILE NO/S: BD 4710/2013 DIVISION: Civil DELIVERED ON: 12 August 2021 DELIVERED AT: Brisbane HEARING DATE: On the papers JUDGE: Barlow QC DCJ ORDERS: The plaintiff’s application filed on 2 August 2021 be dismissed. CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST PROPERTY – WARRANTS OF SEIZURE AND SALE – PROCEDURE – APPLICATION AND TIME OF ISSUE – plaintiff mortgagee sought recovery of land mortgaged
by defendant mortgagor – plaintiff obtained default judgment – court later issued an enforcement warrant – warrant was never executed – plaintiff applied for leave to start a fresh enforcement proceeding – whether application
should be granted. EVIDENCE – ADMISSIBILITY – HEARSAY – GENERALLY – plaintiff applied for leave to start a fresh enforcement proceeding – plaintiff filed affidavit in support of that application – affidavit deposes to matters
for which the source of knowledge is not stated and that are not within the deponent’s direct knowledge – whether affidavit contains inadmissible hearsay – whether affidavit sufficient to prove matters required to be demonstrated to
the court on such an application.Uniform Civil Procedure Rules 1999, rr 430, 894. SOLICITORS: Thomson Geer for the plaintiff
The plaintiff is the mortgagee of land in Queensland owned by the defendant
mortgagor. The land is the defendant’s home.
The plaintiff commenced this proceeding on 10 December 2013, by claim and statement of claim filed on its behalf by Thynne and Macartney solicitors, seeking recovery of possession of the land. On 16 December 2014 the plaintiff obtained default judgment for possession of the land. On 5 August 2016, the court issued an enforcement warrant for possession of the land. However, it appears that the plaintiff did not take steps to execute that warrant, nor was it ever renewed.
The plaintiff now seeks leave, under rule 894 of the Uniform Civil Procedure Rules 1999, to start a fresh enforcement proceeding (that is, presumably, to apply, under rule
906, for a fresh enforcement warrant). The court’s leave is required because it is more
than six years since the order for possession was made.[1] The application is listed for hearing and determination on the papers. The plaintiff has not served the application on the defendant.[2]
[1] Rule 894(1) provides that an enforcement proceeding may be commenced without leave within six years. Otherwise, leave is required.
[2] It need not do so, as such an application may be made ex parte: r 894(2).
The application is supported by an affidavit affirmed by Emilio Torto, who deposes that he is a para-legal in the employ of Thomson Geer, solicitors. He describes that firm as the solicitors for the plaintiff and says that he is assisting in the conduct of the matter under the supervision of a partner of the firm.
Despite Mr Torto’s assertion that the solicitors who employ him are the plaintiff’s
solicitors, the solicitors on the court record for the plaintiff are not that firm but Kemp Strang, who filed a notice of change of solicitor on 5 November 2014. No later notice of change of solicitor is on the court file. Nor have I been able to find any practice direction of the Supreme Court by which parties have been relieved of the obligation under rule 17(3) to file and serve a notice of change of the address for service or the name of the solicitor on the record.[3] Mr Torto does depose, in an outline of events to
which I refer in greater detail below, that on 20 October 2018 “Thomson Geer
acquired Kemp Strang and became the solicitors for the Plaintiff in respect of these
proceedings.” He does not, however, depose how he knows that to be the case.
[3] Any such practice direction would similarly relieve parties in this court, by operation of District Court Practice Direction 4 of 2010.
That is one problem (although minor) with this application. Unfortunately it is beset by other, more fundamental, problems.
Pursuant to rule 894(3), on an application for leave to commence enforcement proceedings, the applicant must satisfy the court:
(a)
that there has not been compliance with the order as at the date of the application;
(b) as to the reasons for the delay; (c) that the applicant is entitled to enforce the order; and (d)
that the person against whom enforcement is sought is liable to comply with the order.
In his affidavit, Mr Torto attempts to satisfy the court of those matters. At the conclusion of the affidavit, he deposes the following, which is a rote statement that almost always appears in affidavits in this and other courts:
All the facts and circumstances herein deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my affidavit.
Unfortunately, on the face of the affidavit Mr Tonto appears to be relying on matters that do not appear to be within his knowledge and he does not state the source of the information to which he deposes nor that he believes it to be true. In paragraph 4, he
sets out a table that, he says, “outlines the events that have occurred since Judgment was entered.” He does not say that he personally was involved in those events. He
says, for example, that on 20 January 2015, “The Plaintiff instructed Kemp Strang,
the former solicitors for the Plaintiff (Kemp Strang), that the defendant was applying
for early release of superannuation benefits” and later that, on 24 August 2015, “The
Plaintiff instructed Kemp Strang that it was attempting to contact the defendant to
discuss the arrears owing under the subject loan account.” Later again he deposes that, on 10 August 2017, “The Plaintiff entered into a without prejudice arrangement
in respect of arrears owing under the subject loan account” and, on 7 September 2017,
“The defendant defaulted under the terms of the without prejudice payment
arrangement.”
Contrary to the last paragraph of Mr Torto’s affidavit, none of those matters (nor many
others, if not the entire outline of events) appears to be within Mr Torto’s direct and
personal knowledge. For example, he exhibits letters from Kemp Strang but does not depose that he was employed by Kemp Strang and knew of the letters at the time. Nor does he say what is the source of many of the facts to which he deposes, even though most, if not all, appear to be based on hearsay statements in documents or, worse, by an unnamed person for the plaintiff to an unnamed person for the solicitors at the time for the plaintiff. The latter must be hearsay on hearsay and therefore inadmissible.
Similar hearsay on hearsay appears in respect of an alleged event on 21 February
2021. Mr Torto deposes that, on that date, “Probe’s agent attended the property to
ascertain the occupancy.” (“Probe” is an unidentified entity referred to elsewhere as
“the Probe Group”.) Mr Torto exhibits what he refers to as a copy of Probe’s report.
That document appears to be an email from an unnamed person to one Lauren Hatton,[4] in which the author reports on what the author has apparently been told by another
person what “our agent” did and what “our agent” was told by the defendant: perhaps
hearsay on hearsay on hearsay.
[4] She is not identified by Mr Torto, although she appears to be the signatory of correspondence from Thomson Geer that is exhibited to the affidavit and she is described in that correspondence as
Mr Torto goes on to say, “The defendant made a hardship notice.” He does not say
what that is.
Finally, Mr Torto exhibits what he describes as a “current loan statement,” again not
stating the source of the document or the information in it.
With all due respect to Mr Torto, his affidavit is woefully inadequate to satisfy the court of the matters described in rule 894(3). In saying that, I lay no blame on Mr Torto, who describes himself as a paralegal and therefore, I infer, has little or no legal training and possibly little experience in practice. Rather, my criticism is directed to the partner of the firm responsible for supervising Mr Torto. Presumably that partner has considerable experience in litigation and he or she should know the correct way to prove matters of fact: that is, by a person with personal knowledge of the facts or, principally in interlocutory applications, who believes hearsay statements of facts based on sources of information that are identified and actually prove the facts.[5] Nor should a partner allow a paralegal, no doubt doing his best, to depose to facts that are
clearly not correct, such as those in the last paragraph of Mr Torto’s affidavit.
Solicitors and their employees should not treat such a paragraph as if it were meaningless, nor allow it to be misleading: it is a sworn or affirmed statement of facts on which the solicitors ask the court to rely.
[5] Rule 430.
All the more is this important in an ex parte application, as this one is. On such an application a solicitor has an even higher duty to ensure that the court is informed correctly and by proper, admissible evidence of all facts relevant to the application.
In the circumstances, I cannot grant this application. It will be dismissed.
As to costs, given my reasons for dismissing the application it seems to me at this stage that it would be appropriate for the solicitors, rather than the plaintiff, to pay the
plaintiff’s costs of the application. However, it would not be appropriate to make such
an order without first hearing from the solicitors. Instead I will simply indicate my view and allow the solicitors and their client to determine between them who should bear those costs, without any order of the court.
“Lawyer”. It seems that she is a lawyer who is also involved with this matter.