In a District Court of Queensland decision, a lender gets an enforcement warrant even though more than two years have passed since obtaining judgment for possession of the security property.
In the recent ruling in Westpac Banking Corporation v Keppel & Anor  QDC 223 the Court takes a cautionary approach. But the lender, in due course, gains the upper hand.
Westpac Banking Corporation (Westpac) provided a loan to Joshua Keppel and Crystal Keppel. A mortgage on 1 Grandview Place, Gympie in Queensland (the Gympie property) was security for the advances made by Westpac.
Subsequently the Keppels went into default. Westpac requested they pay the arrears or deliver up possession of the Gympie property. They failed to do either. Therefore, Westpac filed a claim for possession on 13 October 2014.
On 12 February 2015 Westpac obtained judgment for possession of the Gympie property.
Westpac files for enforcement warrant
On 13 June 2017 Westpac filed for the issuing of an enforcement warrant for possession. Neither the Keppels nor any other occupants of the property resisted the application.
In order for the claim to fall within the Court’s jurisdiction Westpac needed to provide evidence that “the value of the land does not exceed the monetary limit”. As of 20 July 2017, the outstanding loan amount stood at about $95,000. In the same month a valuation revealed the Gympie property to be worth $85,000.
Court adopts cautionary approach
It was necessary, for two reasons, for the court to take a cautionary approach.
Firstly, evidence suggested that the occupants of the Gympie property included persons other than the Keppels. This required the Court to direct the enforcement warrant at both the Keppels and any occupants of the property.
Secondly, more than two years had passed since obtaining the initial judgment. Under these circumstances it is necessary for a Court order when applying for an enforcement warrant. However, Westpac showed that the Uniform Civil Procedure Rules 1999 UCPR 894(1) allows for enforcement of a non-monetary order to occur within six years of a judgment.
Favourable actions taken by Westpac
The following actions promoted Westpac’s cause in obtaining an enforcement warrant:
- Westpac showed the reason for delay was due to attempts to communicate with the Keppels; to get a voluntary vacation of the property.
- The service of the judgment and the application for an enforcement warrant were clearly communicated to the Keppels and the occupants.
- The court found no prejudice to any recipient of the enforcement warrant. Westpac’s delay in filing for a warrant simply meant the continued occupation of the Gympie property.
The Court granted leave for the issue of an enforcement warrant. It directed the enforcement warrant at both the owners and the occupants of the property.
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