BEADLES & WYRE

[2016] FamCA 8

FAMILY COURT OF AUSTRALIA

BEADLES & WYRE [2016] FamCA 8

FAMILY LAW – PROPERTY SETTLEMENT – INTERIM APPLICATION FOR A STAY OF ORDERS – REVIEW OF REGISTRAR’S DECISION – Where Orders for the sale of a property were made in 1993 – Where in 2015, pursuant to an application by the wife, the Registrar executed documents required to facilitate the sale of the property and issued an enforcement warrant for the sale – Where the husband sought a stay of the 1993 Orders and consequential orders setting aside the Registrar’s Orders and the warrant – Where the Court found that there was no basis for the stay of the Orders.

Limitation Act 1969 (NSW) s 17
Family Law Act 1975 (Cth) s 106A

Family Law Rules 2004 (Cth) rules 11.10, 20.16

Aldridge & Keaton [2009] FamCAFC 106 Barrak, B & Ors and Barakat, DM (2005) FLC 93-234
APPLICANT:	Mr Beadles

RESPONDENT: Ms Wyre

FILE NUMBER: SYC 2890 of 2013

DATE DELIVERED: 11 January 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Beazley Boorman Lawyers

SOLICITOR FOR THE RESPONDENT: Hannaford Cox Connellan and McFarland

Orders

IT IS ORDERED

1. That the interim application filed by the husband on 13 October 2015 to stay Orders of the Court made on 25 October 1993 be dismissed.

2. That the balance of the interim applications sought in the application filed by the husband on 13 October 2015 be dismissed.

3. That the substantive application filed by the husband on 13 October 2015 be referred to Registrar Cameron for directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beadles & Wyre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2890 of 2013

Mr Beadles

Applicant

And

Ms Wyre

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an interim application by Mr Beadle (“the husband”) to stay Orders for property settlement made on 25 October 1993 in proceedings between him and Ms Wyre (“the wife”). In his substantive application, the husband seeks that these Orders be permanently stayed.

2. The interim application filed by the husband also seeks consequential orders setting aside orders made by Registrar Cameron on 10 July 2015 and 1 July 2014, setting aside an enforcement warrant and permitting the husband to return to the property that was the subject of the Orders for sale made in 1993. Counsel for the husband conceded before me that, if the primary Orders made in 1993 were not stayed, then the consequential applications must fail. Therefore the application for a stay of the Orders made in 1993 will be considered first.

3. The Orders made in 1993 provided for the sale of a rural property (“the property”) where the husband lived, and the division of the proceeds of sale.

4. Order 3 of those Orders provided that the sale of the property by auction was to take place not later than 25 February 1994. Orders 11 and 12 provided for the Registrar of the Family Court of Australia at Parramatta to execute any document required to give effect to the Orders for the sale of the property.

5. No appeal has been lodged in relation to those Orders and no application has been made to set the Orders aside.

6. The auction for the sale of the property did not take place by 25 February 1994, as required by Order 3 of the Orders.

7. The wife lodged a caveat over the property in October 1999.

8. In 2012 the husband filed a lapsing notice in respect of the caveat. The wife filed an application in the Supreme Court of New South Wales (“the Supreme Court”) in May 2012 in which she sought a declaration as to her interest in the property and an order extending the operation of the caveat.

9. The Chief Judge in Equity, Bergin J, extended the operation of the caveat.

10. On or about 17 May 2013 the proceedings were transferred from the Supreme Court to the Family Court of Australia.

11. On 10 January 2014, the wife filed an Initiating Application seeking an order that:

    To the extent that it is necessary to give effect to orders 11 and 12 of the orders made on 25 October 1993 in proceedings PA6370 of 1992 (“the Orders”), order 3 of the Orders be set aside.

12. Before me, counsel for the husband argued that the wife’s Initiating Application should not have been accepted for filing because it was an amendment of the Summons filed in the Supreme Court and leave had not been granted to amend.

13. Once the proceedings had been transferred to the Family Court of Australia, they were governed by the Rules of this Court. Rule 11.10 of the Family Law Rules 2004 (Cth) permits an application to be amended without leave at any time before the procedural hearing at which the matter is allocated a first day before a Judge. No such hearing had occurred before 10 January 2014. The wife did not require leave to amend her application.

14. Once the Initiating Application had been filed, that was the only application before the Court. Insofar as counsel for the husband sought to argue that the relief sought in the Summons filed in the Supreme Court was a new cause of action and attracted the provisions of s 17 of the Limitation Act1969 (NSW) (“Limitation Act”), that argument has no relevance as that application was no longer before the Family Court of Australia. It is therefore not necessary to consider whether the relief sought in the Summons was statute barred. Although, I note, that argument does not appear to have been agitated before the Supreme Court.

15. On 17 March 2014, the matter came before Johnston J. who granted leave to the wife to proceed with the orders sought in her Initiating Application on an undefended basis, there being no appearance by or on behalf of the husband. His Honour ordered:

    To the extent that it is necessary to give effect to orders 11 and 12 of the orders made on 25 October 1993 in proceedings PA6370 of 1992 (“the orders”), order 3 of the orders be set aside.

    The Orders were to be served on the husband by securing them to the gate of the property and by pre-paid post.

16. No appeal was filed against the Orders of Johnston J.

17. Counsel for the husband argued that the Orders made by Johnston J were made without power and are “ultra vires”. The basis of that argument appeared to be that the wife’s Initiating Application should not have been accepted for filing and was therefore not properly before the Court.

18. For the reasons stated above, I reject that submission.

19. On 29 April 2014, Registrar Cameron executed documents required to effect the sale of the property, pursuant to s 106A of the Family Law Act1975 (Cth) (“the Act”). On 1 July 2014 the documents previously executed pursuant to s 106A were provided to the Real Estate Agent. On 10 July 2015 Registrar Cameron issued an enforcement warrant for the seizure and sale of the property.

20. The enforcement warrant was executed on 28 September 2015.

21. On 13 October 2015 the husband filed an Initiating Application seeking final orders to the effect that the Orders made 25 October 1993 be permanently stayed. The husband also sought, by way of interim orders, that the matter be listed on short notice, that the Orders made 25 October 1993 be stayed until further order, that the enforcement warrant be set aside and that the husband be permitted to return to the property.

22. That application was dealt with in chambers by Senior Registrar Campbell on 14 October 2015. The Senior Registrar declined to list the matter on short notice.

23. The husband sought to review the decision of the Senior Registrar and the interim application is now before the Court for determination.

24. Thus the application to be determined, by way of hearing de novo, is the interim application contained in the husband’s Initiating Application filed 13 October 2015 which is set out below:

    1.The matter be listed on short notice;

    2.The Orders of this Court dated 25 October 1993 be stayed until further order;

    3.That the Orders of Registrar Cameron dated 10 July 2015 and 1 July 2014 be set aside;

    4.The Enforcement warrant – Seizure & Sale of Property be set aside;

    5.The husband be permitted to return to his property (described).

25. Thus the husband seeks to stay the Orders made 25 October 1993 and, as a consequence of the stay, to set aside the Orders for enforcement of those Orders.

26. In a supplementary case outline filed by the husband on 8 December 2015 the orders sought by the husband, should his application for review be successful, were slightly varied from those set out above. The husband seeks orders for the stay of the 1993 Orders pending further order, an order setting aside the Orders of Registrar Cameron dated 10 July 2015 for the seizure and sale of the property and an order permitting him to re-take possession of the property pending further order.

27. In seeking a stay, counsel for the husband relies on the provisions of s 17(1) of the Limitation Act.

28. It is conceded on behalf of the husband that, if the provisions of s 17(1) of the Limitation Act are not enlivened, then the balance of the orders sought by the husband in his interim application must fail.

29. The provisions of s 17(1) are set out below:

17 Judgment

(1)       An action on a cause of action on a judgment is not maintainable if brought after the expiration of a limitation period of twelve years running from the date on which the judgment first becomes enforceable by the plaintiff or by a person through whom the plaintiff claims.

1. On behalf of the husband it is submitted that the wife’s application to the Supreme Court, which was subsequently transferred to the Family Court of Australia and amended by her as outlined above, constituted a new cause of action on the 1993 Judgement that was statute barred pursuant to s 17(1) of the Limitation Act. Counsel for the husband contended that the orders sought by the wife in her Initiating Application (and subsequently made by Johnston J on 17 March 2014), particularly the order setting aside Order 3 of the 1993 Orders, could not be characterised as ancillary or machinery provisions to merely give effect to the 1993 Orders.

2. It is submitted on behalf of the wife that the Orders sought by her were in the nature of machinery orders which were necessary to give effect to the 1993 Orders for the sale of the property. Accordingly, the application was not statute barred pursuant to s 17(1) of the Limitation Act.

3. The submissions on behalf of the husband, being that the relief sought in the wife’s Initiating Application was statute barred, were submissions that could have been made in the proceedings before Johnston J when the wife’s Initiating Application was before his Honour and was determined in her favour. The husband failed to appear before Johnston J on 17 March 2014. He has not filed an appeal against his Honour’s Orders of that day nor has he applied for those Orders to be set aside or varied pursuant to s 79A(1) of the Act. Rather, the Orders sought to be set aside by the husband in these proceedings are the Orders of 10 July 2015, when Registrar Cameron issued an enforcement warrant for the seizure and sale of the property.

4. The interpretation of s 17(1) of the Limitation Act was considered by the Full Court in Barrak, B & Ors and Barakat, DM (2005) FLC 93-234 where the Full Court examined the authorities and held at 79,885:

   55. We are satisfied that the action brought by the wife in 2003 was not a new cause of action, but was an application for orders providing additional machinery provisions for the implementation of the 1986 orders.  We agree with the trial Judge’s characterisation of the application as an enforcement application.

   56. In so determining, we accept the reasoning of the Full Court of the Federal Court in Dennehy is compelling.  Whilst acceptance of the ratio in Dennehy perpetuates a narrow interpretation of the statute, it is an interpretation followed by superior courts for many years, and not subject of legislative change in 1969 or since.  The interpretation of the law which clearly differentiated between an action on a judgment and execution was recognised by the Law Reform Commission when the New South Wales legislation was enacted but did not result in legislative change.  We are satisfied the wife’s action was one for execution and not an action on a cause of action.

5. The distinction to be drawn is between the process of execution of a judgement and an action on the judgement. The application brought by the wife before the Registrar, whose Orders are sought to be set aside by the husband in the present case, was an application to enforce the judgement.

6. Significantly, the Act contains no provision which limits the time in which an Order may be enforced.

7. The consequence of the Orders made by Johnston J on 17 March 2014 was that the time by which the property was to be sold, pursuant to the 1993 Orders, was at large.

8. The wife then proceeded to enforce the 1993 Orders according to the provisions of orders 11 and 12 by requesting that the Registrar sign an Agency Agreement. The Registrar signed the Agency Agreement.

9. The wife then requested the Court to issue an enforcement warrant for the seizure and sale of the property pursuant to Rule 20.16 of the Rules and the warrant was issued on 10 July 2015. The warrant was executed.

10. The applications made by the wife before the Registrar can only be construed as applications to enforce the 1993 Orders.

11. The substantive application of the husband is for the 1993 Orders to be stayed. The husband also seeks, on an interim basis, the stay of the 1993 Orders pending the determination of his final application.

12. There is no basis for those Orders to be stayed. Section 17(1) of the Limitation Act does not operate to stay the substantive Orders but to bar further causes of action based on the judgement. The intent of the husband’s interim application appears to be to stay the enforcement of the 1993 Orders. For the reasons I have expressed, that application would fail.

13. It is therefore not necessary to consider the balance of the husband’s application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 11 January 2016.

Associate:

Date:  11/1/2016