Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 2)

In the matter of Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 2), the Court was called upon to determine whether the Federal Circuit and Family Court of Australia (FCFC Court) had the authority to delegate the execution of a writ of possession to an officer of the New South Wales (NSW) Sheriff’s office. The dispute arose from an order made by the FCFC Court on 30 July 2021, which required the respondent to deliver up possession of a property in South Grafton within a specified period. The applicant, acting as the Trustee, sought to have the writ of possession executed by the NSW Sheriff’s office after the stay on execution was lifted on 24 September 2021. However, the NSW Sheriff’s office declined to execute the writ, citing concerns about the scope of delegation and the absence of a clear statutory authority for such delegation.

The central legal issues before the Court were whether the FCFC Court had jurisdiction to determine if the FCFC Sheriff could delegate the execution of the writ to a NSW sheriff’s officer and, if so, whether such a delegation was permissible under the applicable laws. The Court had to interpret relevant statutory provisions, including sections 213 and 260 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), and rule 25.11 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The Court examined whether the FCFC Sheriff's power to delegate the execution of writs to NSW sheriffs could be reasonably argued to exist, considering the Commonwealth laws and the NSW Crown Solicitor’s Office's apparent opinion that such delegation was impermissible.

The Court concluded that it had jurisdiction to determine whether the FCFC Sheriff could delegate the execution of the writ to a NSW sheriff’s officer, as the matter involved interpreting the scope of the FCFC Court's powers under the FCFC Act and the GFL Rules. The Court also found that while the NSW Crown Solicitor’s Office's opinion that there was no clear statutory authority for such delegation was significant, the Court was not bound by it. Ultimately, the Court ruled that the FCFC Sheriff could delegate the execution of the writ to a NSW sheriff’s officer, provided it complied with the statutory framework and rules governing the delegation of enforcement powers.

The Court issued orders determining that it had jurisdiction to make the determination and that the FCFC Sheriff could delegate the execution of the writ to a NSW sheriff’s officer. The Court further directed the FCFC Deputy Sheriff to pass the writ to the NSW Sheriff’s office for execution and instructed the NSW Sheriff’s office to execute the writ accordingly.