FEDERAL COURT OF AUSTRALIA Maher v Commonwealth Bank of Australia (No 2) [2004] FCA 1398 PRACTICE AND PROCEDURE – judgment for recovery of land – execution of judgment – stranger re-takes possession – warrant of possession Federal Court of Australia Act (1976) (Cth), s 53(1) Supreme Court Act 1986 (Vic) Federal Court Rules, O 37 r 7 Supreme Court (General Rules of Procedure in Civil Proceedings) 1996 (Vic), r 66.03 Alliance Building Society v Austen [1951] 2 All ER 1068 cited Bond v Bell (1857) 4 Drew 157 cited Devereux v Underhill (1667) 2 Keb 245 cited Doe d Pitcher v Roe (1841) 9 Dowl 971 cited Doe d Stevens v Lord (1839) 7 Ad & E 610 cited Doe d Thompson v Mirehouse (1883) 2 Dowl 200 cited Doe, on Demise of Patet v Roe (1807) 1 Taunt 55 cited Fortune v Johnson (1651) Styles 318 cited Kingsdale v Mann (1703) 6 Mod Rep 27 cited Lacon v De Groat (1893) 10 TLR 24 cited Marriner v Smorgon [1989] VR 485 cited Mason v Paynter Esquire (1841) 1 QB 974 cited Molineux v Fulgam (1622) Palm 289 cited Queen v Elliott [1955] VR 126 cited Stacpoble v Walsh (1880) 6 LR Ir 444 cited Styles Case (1609) 2 Br & G 216 cited Upton and Wells Case (1589) 1 Leon 145 cited Bacon's Abridgment, Ejectment, (G) 3 Chitty's Archbold's Practice, vol 2, (12th ed, 1866) Cole's Ejectment (1857) Edwards on Execution (1888) 2 Freeman on Executions, (2nd ed, 1888) Lord Ellesmere's Treatise Roscoe on Real Actions (1825) Watson on Sheriffs (1827) DENNIS MAHER v COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and OFFICIAL TRUSTEE IN BANKRUPTCY V 204 of 2001 FINKELSTEIN J 29 OCTOBER 2004 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 204 of 2001 BETWEEN: DENNIS MAHER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and OFFICIAL TRUSTEE IN BANKRUPTCY Respondents AND BETWEEN: COMMONWEALTH BANK OF AUSTRALIA Cross Applicant AND: DENNIS MAHER and THE OFFICIAL TRUSTEE IN BANKRUPTCY (as the Former Trustee of the bankrupt estate of Dennis Maher) Cross Respondents JUDGE: FINKELSTEIN J DATE OF ORDER: 29 OCTOBER 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The motion filed by The Commonwealth Bank of Australia on 30 August 2004 be dismissed. 2. There be no order as to costs Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 204 of 2001 BETWEEN: DENNIS MAHER Applicant AND: COMMONWEALTH BANK OF AUSTRALIA, GREG FIRTH, GRAY & JOHNSON (A FIRM), REGISTRAR OF TITLES (Victoria) and OFFICIAL TRUSTEE IN BANKRUPTCY Respondents AND BETWEEN: COMMONWEALTH BANK OF AUSTRALIA Cross Applicant AND: DENNIS MAHER and THE OFFICIAL TRUSTEE IN BANKRUPTCY (as the Former Trustee of the bankrupt estate of Dennis Maher) Cross Respondents JUDGE: FINKELSTEIN J DATE: 29 OCTOBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 5 February 2004 the Commonwealth Bank, as mortgagee, obtained judgment for possession of the land at 384 Spencer Street, Melbourne. The Bank's action was against one Maher, who claimed to be the tenant of the mortgagor. A warrant of possession was issued to the sheriff who ejected Maher on 8 June 2004 and gave possession to the Bank. Nearly two weeks later, the Bank discovered that the mortgagor, Taylor, had taken possession of the land. Taylor told the Bank: "I am in possession as my right as the Registered Proprietor of the property". The Bank now moves for the issue of a "warrant of restoration" so that the sheriff might take possession of the land from Taylor. Because the property is in Victoria, the Bank will only be entitled to the warrant if its judgment could have been enforced by that process had the judgment been given by the Supreme Court of Victoria: Federal Court of Australia Act (1976) (Cth), s 53(1); Federal Court Rules, O 37 r 7 2 For the purposes of enforcement, there is a distinction between a judgment to "recover possession" and a judgment to "deliver up possession". The distinction dates back to pre-Judicature Act times. A judgment of a court of common law was nothing more than "a sentence of a Court … declaring the opinion of the Court that the plaintiff is entitled" to a certain form of relief: Bond v Bell (1857) 4 Drew 157. The judgment was not a command which required obedience by the persons whom it affected. The judgment had to be enforced by officers of the court. This was in contrast to a suit in equity. There the question was whether relief should be granted to the plaintiff by constraining the person of the defendant to do or refrain from doing some act. The decree was regarded as a command and would be enforced by attachment or sequestration: Lord Ellesmere's Treatise at 62. Following the passage of the Judicature Acts, a single superior court now deals with actions at law and in equity. But the distinction between the two kinds of judgments still exists, and the methods of enforcement depend entirely upon the form of the judgment in question. In this case we are concerned with a judgment to recover possession; this was the form of judgment obtained by the Bank. 3 Once a judgment for possession is entered there is no reason why the plaintiff cannot take possession of the land with or without the defendant's consent, provided possession is taken peaceably. At one time it was doubted whether the plaintiff could take possession without first suing out a writ seeking the aid of the sheriff: Doe d Stevens v Lord (1839) 7 Ad & E 610. The better view is that the issue of a writ of possession is not necessary: Roscoe on Real Actions (1825) at 608; Cole's Ejectment (1857) at 344, 355; Chitty's Archbold's Practice, Vol 2, (12th ed, 1866) at 1046. The risk is that acting without a writ may result in the commission of the ancient offence of forcible entry. 4 Under the former practice a judgment for possession was enforced by the issue of a writ of habere facias possessionem, if necessary with a fieri facias clause for any damages or costs which the plaintiff had recovered at judgment. This writ came to be called a writ of possession. The sheriff was required to execute the writ (usually by making out a warrant for one of his bailiffs to execute) and might be liable in damages if he refused or delayed in his duty: Mason v Paynter Esquire (1841) 1 QB 974. The sheriff or his bailiff executed the writ by, if necessary, breaking into the property and removing everyone in it and then delivering the property to the plaintiff and placing him in peaceable possession: Upton and Wells Case (1589) 1 Leon 145; Edwards on Execution (1888) at 102. As every film lover, especially one with a fondness for Westerns, knows, if there was the possibility of violence the sheriff could raise a posse comitatus, or posse for short: Watson on Sheriffs (1827) at 60. The position in the United States is different. There only the defendant and those claiming through him can be removed by the sheriff: 2 Freeman on Executions, (2nd ed, 1888) § 475. 5 If anyone, including a stranger, interfered with the execution of the writ, he committed a contempt of court: Styles Case (1609) 2 Br & G 216; Lacon v De Groat (1893) 10 TLR 24. If, after execution, the plaintiff was immediately put out of possession by the defendant, particularly before the writ of possession had been returned, he might have another writ, an alias, on the basis that there had not been a true execution: Dogger v Roe (1688) Comb 150; Kingsdale v Mann (1703) 6 Mod Rep 27; Doe d. Thompson v Mirehouse (1883) 2 Dowl 200. Indeed the writ could be continually renewed until there was an effectual execution, that is, until the plaintiff obtained full and quiet possession: Molineux v Fulgam (1622) Palm 289; Devereux v Underhill (1667) 2 Keb 245. On the other hand, if the writ were executed an alias, could not be issued otherwise the plaintiff might "retain the right of suing out a new habere facias possessionem, as a remedy for any trespass which the same [defendant] might commit within twenty years next after the date of the judgment": Doe, on Demise of Patet v Roe (1807) 1 Taunt 55. Contrast the position in Ireland, as to which see Stacpoble v Walsh (1880) 6 LR Ir 444. 6 There were some cases, limited to the situation where the defendant had retaken possession within a short period, where the court would, upon application, issue a writ of restitution: Doe d Pitcher v Roe (1841) 9 Dowl 971; Alliance Building Society v Austen [1951] 2 All ER 1068; The Queen v Elliott [1955] VR 126. However, where the plaintiff was forcibly taken out of possession by a stranger after a writ of possession had been fully executed, he could not obtain a writ of assistance but was required to bring a new action or bring proceedings for contempt: Fortune v Johnson (1651) Styles 318; Doe d Thompson v Mirehouse (1883) 2 Dowl 200. Bacon's Abridgment, Ejectment (G) 3 explains that: " … after the possession given, either on the habere facias possessionem, or agreement of the parties, the law seems to make a difference where the plaintiff is turned out of possession by the defendant, and where by a stranger. When it is done by the defendant himself, the plaintiff may have either a new habere facias or an attachment, because the defendant himself shall never by his own act keep the possession which the plaintiff has recovered from him by due course of law. But, where a stranger turns the plaintiff out of possession after execution fully executed, the plaintiff is put to another action, or to an indictment for the forcible entry. For the title was never tried between the plaintiff and a stranger; and he may claim the land by title paramount to the plaintiff, or he may come in under him; and then the recovery and execution in the former action ought not to hinder the stranger from keeping that possession which he may have a right to. If the law were otherwise the plaintiff might by virtue of a new habere facias turn out even his own tenants, who came in after the execution executed; whereas the possession was given him only against the defendant in the action, and not against others not parties to the suit." 7 Of course, as against a stranger, the dispossessed plaintiff could physically take possession of the property provided this was done without a breach of the peace. In relation to proceedings for attachment, Edwards points out that "[i]t will require something more than the mere fact of trespass to render [the stranger] liable in contempt. He must, at any rate, have known of the sheriff's execution, and have intended to thwart it.": Edwards on Execution (1888) at 105. 8 Victoria got rid of the old writs of execution by s 3(5) of the Supreme Court Act 1986 (Vic). A judgment in any proceeding must now be enforced in accordance with the current rules of the Supreme Court "and not otherwise". The object of s 3(5) was to substitute new simplified methods of execution; the old writs were very complex and hard to understand: Marriner v Smorgon [1989] VR 485, 508. Rule 66.03 of the Supreme Court Rules (Vic) now provides that a judgment for possession may be enforced by a warrant of possession or by committal or sequestration. The reason for the change from a writ to a warrant is not clear. A writ was a command from the Sovereign to the officers of the court to whom it was directed. A warrant of execution was the name given to a writ of execution when it was issued from an inferior court. At any rate, while the form of execution has now changed, the principles upon which execution is based remain the same. 9 Accordingly, a warrant of possession cannot issue against Taylor. If the Bank cannot take possession peaceably, or bring proceedings for contempt, it will be necessary to bring a separate action against Taylor. In that event it is difficult to see how he could defend an application for summary judgment or an interlocutory injunction to restrain a trespass, when he pays his debt to the Bank. 10 The present application will be refused. As Taylor has not incurred any expense, there will be no order as to costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 29 October 2004 No appearance for the Applicant and First Cross Respondent. Mr Taylor appeared in person. Counsel for the 1st, 2nd & 3rd Respondents and the Cross Applicant: R.D. Shepherd Solicitor for the 1st, 2nd & 3rd Respondents and the Cross Applicant: Ryrie Bridges No appearance for the 5th Respondent and Second Cross Respondent Solicitor for the 5th Respondent and Second Cross Respondent: Aitken Walker & Strachan Date of Hearing: 15 October 2004 Date of Judgment: 29 October 2004