Leroy (Trustee of the Bankrupt Estate of Angela Hill) v Hill

[2017] FCCA 418

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEROY (TRUSTEE OF THE BANKRUPT ESTATE OF ANGELA HILL) v HILL & ANOR [2017] FCCA 418

Catchwords:
BANKRUPTCY – Order for delivery up of vacant possession not complied with.

PRACTICE AND PROCEDURE – Application to vary previous order referring to writ of possession – variation to refer to property seizure and delivery order.

Legislation:

Civil Judgments Enforcement Act 2004 (WA), ss.7, 94, 95
Civil Procedure Act 2005 (NSW)
Federal Circuit Court Rules 2001 (Cth), rr.16.05(2), 29.11(1)

Applicant: PAUL LEROY (TRUSTEE OF THE BANKRUPT ESTATE OF ANGELA HILL)

First Respondent: ANGELA HILL

Second Respondent: MATHEW NOEL HILL

File Number: PEG 241 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 28 February 2017

Date of Last Submission: 28 February 2017

Delivered at: Perth

Delivered on: 28 February 2017

REPRESENTATION

Counsel for the Applicant: Mr T Murtanovski, by telephone

Solicitors for the Applicant: CCSG Legal Pty Ltd

Counsel for the First Respondent: Mr T Retallack

Solicitors for the First Respondent:	Culshaw Miller
For the Second Respondent:	No appearance

ORDERS (made on 28 February 2017)

1. Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth) order 4 of the Court’s orders of 17 November 2016 be amended by substituting the words “Property (Seizure and Delivery) Order pursuant to the Civil Judgments Enforcement Act 2004 (WA)” for “a writ possession”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 241 of 2015

PAUL LEROY (TRUSTEE OF THE BANKRUPT ESTATE OF ANGELA HILL)

Applicant

And

ANGELA HILL

First Respondent

MATHEW NOEL HILL

Second Respondent

REASONS FOR JUDGMENT

(Delivered orally at hearing and revised)

1. On 17 November 2016, the Court made orders and declarations by consent, including order 4, which was in the following terms:

   In the event that the respondents fail to deliver up vacant possession of the Property, in accordance with the orders above, a writ possession be issued forthwith favour of the applicant.

2. The property referred to is set out in order 1 of the 17 November 2016 orders, being a property situated at 492 Newcastle Street, West Perth, in the state of Western Australia, as described in the Certificate of Title, in Volume 1454 Folio 496 and being Lot 4 in Deposited Plan 2931.

3. There has evidently not been compliance with the Court’s orders, and the respondents have failed to deliver up vacant possession of the property. It was the plain intention of order 4 to facilitate a process whereby the applicant obtain vacant possession of the property. Regrettably, both the parties and the Court overlooked the fact that, in the current circumstances in order to obtain vacant possession of property in Western Australia, it is usually necessary to obtain a property seizure and delivery order, under the terms of the Civil Judgments Enforcement Act 2004 (WA) (“CJE Act”), unlike the process, for example, in New South Wales, where one obtains under the Civil Procedure Act 2005 (NSW), a writ of possession.

4. The Court notes, in that respect, that r.29.11(1) of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) empowers the Court to issue writs and make orders to enforce judgments and orders as if they were made by the WA Supreme Court, and s.7 of the CJE Act explicitly extinguishes the operation and existence of common law writs with respect to execution and enforcement of judgments in WA and ss.94 and 95 of the CJE Act provide that, where an order or judgment requires a person to give possession of any real property, the beneficiary of the order can apply for an order for the seizure and delivery of that property.

5. The error made is one which can be remedied by varying order 4 of the Court’s orders of 17 November 2016 pursuant to r.16.05(2)(e) of the FCC Rules, as the current order does not reflect the intention of the Court, which was that in the event of the failure to deliver up vacant possession of the property, the applicant would be able to obtain appropriate relief from the Court, to allow the applicant to obtain possession of the property. In the circumstances, therefore, the Court will vary order 4 of the Court’s orders of 17 November 2016, to replace the words “a writ possession” with the words “a Property Seizure and Delivery order pursuant to the Civil Judgments Enforcement Act 2004 (WA)”.

6. The Court notes that the first respondent sought to tender an affidavit concerning the fact that the property has not been vacated and, with respect to matters in relation to that, submissions were made this morning in respect of ongoing negotiations with the trustee and the first respondent, concerning the property. In the circumstances, the Court does not accept the tender of the affidavit. This matter is simply about whether or not an order, which was erroneous, ought to be remedied, and in the Court’s view it ought to be remedied. Otherwise the parties will no doubt continue on their way, hopefully adopting a civil and orderly approach, which will not require further intervention from the Court. There will be an order in the terms that the Court has indicated.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Date: 8 March 2017