Luca-Andreou, L. v Fosslawn Pty Ltd

[1990] FCA 195

1% 90

JUDGMENT NO. ........ ........ l........ .-

C A T C H W O R D S

PRACTICE AND PROCEDURE - application for writ of sequestration - procedure for enforcement of money judgments considered - rules governing Supreme Court [of Queensland] practice applicable.

Federal Court of Australia Act 1976, ss.23, 31, 53

Lucas Luca-Andreou

1. Fosslawn Pty Ltd C Ors

Old G115 of 1987

PINCUS J.

BRISBANE

15 MAY 1990

IN THE FEDERAL COURT OF AUSTRALIA	1
QUEENSLAND DISTRICT REGISTRY	1 QLD G115 of 1987

GENERAL DIVISION 1

BETWEEN: LUCAS LUCA-ANDREOU

Applicant

AND: FOSSLAWN PTY LTD

First Itespondent

AND: ARTHUR POULITSAS

Second Respondent

AND: MICHAEL POULITSAS

hi rd Respondent

AND: WILLIAM POULITSAS

(also known as BASILIOS POULITSAS) -

Fourth Respondent

AND: H. DRAKOS AND COMPANY

Fifth Itespondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	15 MAY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    the application be dismissed.

NOTE :	settlement and entry of orders is dealt wlth in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	)
GENERAL DIVISION	)

BETWEEN: LUCAS LUCA-ANDREOU

Applicz~nt

AND: FOSSLAWN PTY LTD

First Izespondent

AND: ARTHUR POULITSAS

Second Respondent

AND: MICHAEL POULITSAS

Third itespondent

AND: WILLIAM POULITSAS

(also known as BASILIOS POULITSAS) -

Fourth Respondent

AND: H. DRAKOS AND COMPANY

Fifth Izespondent

PINCUS J.

REASONS FOR JUDGMENT

The applicant, having judgment against the first, second, third and fourth respondents, seeks an order that a writ of sequestration be issued against the first and second respondents. The judgment, which was given on 12 November 1987, requires (inter alia) that certain liabilities be discharged.

A writ of sequestration is primarily a remedy for

contempt of court. There could not reasonably be held to have been a contempt here, since, for all that is known, non-compliance with the orders made on 12 November 1987 may have been due to inability rather than unwillingness.

Under the English practice, a writ of sequestration is able to be used to enforce orders for payment of money, but see Coles v. Coles (1957) P 68.

Order 37 of our Rules, headed "Judgmenl.~ and Orders:

Enforcement", does not deal comprehensively with that subject. For example, 0.37 r.2, which prescribes the procedure to be followed in enforcing orders by committal or sequestration, does not specify the circumstances in which those remedic~s may be used; that is left to the general law. In AMIEU V. s n b e r r i Station Pty Ltd (1986) 161 CLR 98, the High Court had to consider an order for a writ of sequestration. It held that there was undoubted power to make the order and that was apparently based upon ss.23 and 31 of the Federal Court of Australia Act 1976 ("the Act"). The latter provision deals with power to punish for contempt. The former is as follows:

"The Court has power, in relation to nlatters in

which it has jurisdiction, to make order:: of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate."

It appears to me, however, that the primary provision dealing with enforcement of judgments is s.53 of the Act, which reads in part as follows:

"53(1) Subject to the Rules of Court, a person in whose favour a judgment of the Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given".

It appears to me, that at least in general, it is to s.53 rather s.23 that one must look for power to enforce judgments; as I have mentioned, contempt proceedings are specifically dealt with in s.31.

The result is that, in my opinion, the Court has power to issue a writ of sequestration in the preseni. case if the Supreme Court of Queensland could have done so since the judgment was given in this State. Order 47 r.5 of the Rules of the Supreme Court says:

"A judgment or order for the recovery of any

property other than money or land may be enforced by writ of delivery or writ of sequestration, or by attachment."

Order 47 r.6 reads as follows: 

'A judgment or order for the payment of money into

Court, or for the performance of a judgment, order, or writ, by which any person is required to do any act other than the payment of money to some person, may be enforced by writ of attachment ot writ of sequestration."

The effect of these rules seems plain enough: the Supreme Court of Queensland may not issue a writ of sequestration to enforce an order for payment of money to some pelson or for the recovery of money. Order 48 r.4 entitles a plaintiff to a writ of sequestration where there is default in compliance with a judgment or order whereby a person is "directed to pay money into Court or to do any other act in a limited time". The expression "any other act", read broadly, could cover a simple money judgment or order to pay money, but it appears to me that one shol~ld read these rules together and that the provisions of 0.47 make it clear that a judgment of the kind here in question could not, if granted in the Supreme Court, be a foundation for a writ of sequestration.

It appears to me to follow that there is no power in this Court to issue a writ of sequestration on such a judgment. The orthodox remedy available in the Supreme Court in such a case is the writ of fi. fa.: see 0.47 r.3 of the Rules of the Supreme Court of Queensland. If the applicant so desires, I will direct that a writ of fi. fa. may be issued by the Registrar to enforce the judgment against the first and second respondents.

I certify that this and the three

preceding pages are a true copy of the

reasons for judgment herein of His Honour

Mr. Justice Pincus.

n

Dated 1549 990

Counsel for the applicant:	Mr M. Conrick
Solicitors for the applicant:	Palella Humphries 6 Co.
Solicitors for the 3rd and 4th

respondents:  Klar and Klar

Date of Hearing:  23 November 1'389