Re: Tantner; Worrell v Issitch

[2001] FCA 685

FEDERAL COURT OF AUSTRALIA

Re: Tantner; ex parte Worrell v Issitch & Ors [2001] FCA 685

BANKRUPTCY – Renewal of warrant for seizure and sale – warrant partially executed – application made after warrant expired.

Federal Court Act 1976 (Cth), s 53
Federal Court Rules, O 37 r 7
Uniform Civil Procedure Rules 1999 (Qld), rr 7, 820, 821
Rules of the Supreme Court (Qld) (repealed), O 47 rr 21, 22
Rules of the Supreme Court of the Northern Territory, O 36 r 5

Walker v Buksh [1981] VR 1061, cited
Stutt v Smith (1888) 10 ACT 159, cited
Burns Philp Ltd v Todd (1978) 19 ALR 721; 33 FLR 35, followed

Re: SIGFRIED TANTNER (Bankrupt) Ex Parte: IVOR WORRELL v LUDMILLA ISSITCH aka LUDMILLA TANTNER-ISSITCH and OTHERS

QG 7007 of 1996

SPENDER J
BRISBANE
31 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7007 OF 1996

BETWEEN:

RE: SIGFRIED TANTNER (Bankrupt)

Ex Parte: IVOR WORRELL
APPLICANT

AND:

LUDMILLA ISSITCH AKA LUDMILLA TANTNER-ISSITCH
RESPONDENT

HILARIO RICABLANCA AND GREGORIA RICABLANCA
CROSS RESPONDENTS

JUDGE:

SPENDER J

DATE OF ORDER:

31 MAY 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The Registrar be directed to renew an enforcement warrant for seizure and sale of property in the form of exhibit 1 to these orders.

2.That the respondent pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 7007 OF 1996

BETWEEN:

RE: SIGFRIED TANTNER (Bankrupt)

Ex Parte: IVOR WORRELL
APPLICANT

AND:

LUDMILLA ISSITCH AKA LUDMILLA TANTNER-ISSITCH
RESPONDENT

HILARIO RICABLANCA AND GREGORIA RICABLANCA
CROSS RESPONDENTS

JUDGE:	SPENDER J
DATE:	31 MAY 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application to renew an enforcement warrant for seizure and sale of property.  Under s 53 of the Federal Court Act 1976 (Cth) and O 37 r 7(2) of the Federal Court Rules, 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 as one allowed by the laws of that State and the procedure followed shall, so far as practicable, be the procedure of that State applied mutatis mutandis.  A common law writ of execution remained in force until it was completely executed, regardless of how long that took.  However, in most jurisdictions, according to Halsbury’s Laws of Australia, paragraph 325, 9860:

   “The rules now provide that such a writ is valid for one year from the date of issue unless renewed, or unless the period is extended.  In most jurisdictions an order for renewal may be made after the one year period has expired.”

2. The authorities for that proposition are Walker v Buksh [1981] VR 1061; Stutt v Smith (1888) 10 ALT 159; Burns Philp Ltd v Todd (1978) 19 ALR 721, 33 FLR 35.

3. The rules in the Northern Territory and Victoria have been amended subsequent to those cases to specify that an order extending the validity of the warrant shall not be made after the day of expiry of the warrant.  In Burns Philp Ltd v Todd, Gallop J held that the Northern Territory equivalent of O 47 r 21 of the Rules of the Supreme Court (Qld), which was the predecessor to rule 820 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), did not prevent the Court under the Rules of the Supreme Court of the Northern Territory, O 36 r 5, which is in substance the equivalent of rule 7 of the UCPR, from extending the time in which a warrant was valid after the warrant expired.  In Walker v Buksh, Lush J found the Victorian equivalent was to be read in a similar fashion as in Burns Philp.  Rule 820(1)(b) states that a warrant must state a date within 1 year on which the warrant is to expire.

4. The predecessor to rule 820, O 47 rr 21, 22 of the Rules of the Supreme Court (Qld) provided that the warrant would expire after one year.  That appears to be the only practical difference in the application to the present case.  Rule 821 provides for the ability of the Court to extend the warrant where the application is made prior to the expiration of the warrant.  It does not state that an application to extend time may not be made after the expiration of the warrant.

5. I am content to rely on the reasoning of Gallop J in Burns Philp, and hold that the Court has power to extend or renew the warrant, notwithstanding it has expired.  In this case the warrant is partially executed.  In the absence of a specific rule precluding the making of an order extending the time for the warrant after its expiration, in my opinion not only does the Court have power to extend, but it is appropriate in the circumstances deposed to by Mr Eugene White in the affidavit read on this application, to do so.

6. The orders that I make are:

   (1)that the Registrar be directed to renew an enforcement warrant for seizure and sale of property in the form of exhibit 1 to these orders.

   (2)that the respondent pay the applicant’s costs of and incidental to this application, to be taxed if not agreed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             31 May 2001

Solicitors for the Applicant:	Baker Johnson
Date of Hearing:	31 May 2001
Date of Judgment:	31 May 2001