Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 3)
[2021] FedCFamC2G 299
•19 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 3) [2021] FedCFamC2G 299
File number(s): SYG 1242 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 19 November 2021 Catchwords: BANKRUPTCY – Practice and procedure – administrative arrangements entered into between the Sheriff of the Federal Circuit and Family Court of Australia (Division 2) (Court) and the Sheriff of New South Wales for the execution of writ of possession issued by the Court – whether form in which writ of possession issued pursuant to previous order of the Court directed to the Sherriff of New South Wales should be set aside or amended so that the current writ of possession should be directed to the Sheriff or Deputy Sheriffs of the Court – previous writ of possession set aside and order made for the issue of a writ of possession directed to Sheriff or Deputy Sheriffs of the Court. Division: Division 2 General Federal Law Number of paragraphs: 7 Date of hearing: 19 November 2021 Place: Sydney Solicitor for the Applicant: No appearance by, or on behalf of, the applicant Solicitor for the Respondent: No appearance by, or on behalf of, the respondent ORDERS
SYG 1242 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF THE BANKRUPT ESTATE OF MICHAEL JOHN HURST
BETWEEN: ANDREW JOHN SCOTT, THE TRUSTEE OF THE PROPERTY OF MICHAEL JOHN HURST, A BANKRUPT
Applicant
AND: RHONDA CAROLINE HURST
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
19 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The writ of possession issued on 6 August 2021 pursuant to the orders made on 30 July 2021 (Orders) directed to “the Sheriff of New South Wales and all Sheriff’s officers” is set aside.
2.In lieu of the writ of possession referred to in order 1, leave is granted for the issue of a writ of possession of the “Property”, as defined in the Orders, in the form, or substantially in the form, of the writ of possession referred to in order 1, save that the writ of possession shall be directed to the Sheriff of the Federal Circuit and Family Court of Australia (Division 2), the Deputy Sheriffs of the Federal Circuit and Family Court of Australia (Division 2), and such person or persons whom the Sheriff of the Federal Circuit and Family Court of Australia (Division 2), or the Deputy Sheriffs of the Federal Circuit and Family Court of Australia (Division 2), may authorise to assist them in the execution of the writ of possession.
3.The respondent pay the applicant’s costs in relation to the applicant’s attempts to enforce the Orders.
4.By 26 November 2021, the applicant file and serve all evidence and submissions in relation to the quantification of the costs referred to in order 3.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Revised from transcript)
On 20 October 2021 I delivered reasons for judgment in relation to issues that arose concerning the execution by the New South Wales Sheriff of writs issued by this Court.[1] On the basis of those reasons for judgment, I listed the matter for a directions hearing on 5 November 2021 to give to the parties, including the Sheriff of New South Wales, an opportunity to make submissions on the issues identified in my reasons for judgement.
[1] Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 2) [2021] FedCFamC2G 166
Shortly before the scheduled directions hearing, my associate received a communication from lawyers representing the New South Wales Sheriff, requesting that the directions hearing be adjourned for two weeks. Mr Edmonds, who represents the applicant, agreed that the directions hearing be adjourned. That request was, of course, granted, and the matter was listed for directions this morning.
At the directions hearing this morning Mr Sherrington appeared on behalf of the Sheriff of New South Wales, and Mr Edmonds appeared on behalf of the applicant. Mr Sherrington informed me that administrative arrangements have been entered into between the Sheriff of New South Wales and the Sheriff, or Deputy Sheriff, of this Court, the effect of which is, or will be, that writs issued by this Court will be enforced by the New South Wales Sheriff, and her officers.
Mr Sherrington raised a question about the form of the writ of possession that was issued on 6 August 2021 pursuant to the orders I made on 30 July 2021. That writ is directed to “the Sheriff of New South Wales and all Sheriff’s officers”. Mr Sherrington submitted that the writ should not be directed to the Sheriff or any officer of the Sheriff of New South Wales, but should be directed to this Court’s officers and, in particular, the Sheriff or Deputy Sheriff. That submission appears to be plainly correct. This Court does not have authority to issue writs to the Sheriff of New South Wales or, indeed, to any officer other than officers of this Court. Mr Sherrington submitted that the current writ should be at least amended.
After a short discussion with Mr Edmonds about this issue, I decided to reserve for a little while my consideration of the orders that I should make, to give effect to Mr Sherrington’s submission about the form of the writ; and I indicated to the parties that I would list this matter in the course of the morning to pronounce my orders.
I have given the question as to the form of the writ some consideration, and it seems to me that the most appropriate course will be for me to set aside the writ that was issued on 6 August 2021, and order that, in lieu of that writ, a writ of possession in substantially the same form be issued, except that the writ be directed to the Sheriff of the Federal Circuit and Family Court of Australia (Division 2), the Deputy Sheriffs of the Federal Circuit and Family Court of Australia (Division 2), and such person or persons whom the Sheriff of the Federal Circuit and Family Court of Australia (Division 2), and the Deputy Sheriffs of the Federal Circuit and Family Court of Australia (Division 2), may authorise to assist them in the execution of the writ of possession; and I will make orders to that effect in a moment.
Mr Edmonds applied for an order for the costs the applicant has incurred in connection with the enforcement of the orders that I made on 30 July 2021. I am satisfied that it is appropriate for such order to be made. The difficulties that have arisen with the execution of the writ I ordered to be issued would not have arisen had the respondent complied with the orders I made on 30 July 2021. I therefore also propose to make an order for costs. Mr Edmonds requested that I make an order fixing those costs, and he requested that I provide the applicant some time to file submissions and evidence on that question. I propose to give Mr Edmonds seven days to do that.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 November 2021
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