Black & Wilkinson (No 2) [2025] FedCFamC2F 1378 (2 October 2025)

Solicitor for the First Respondent in the enforcement application:

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

MR PERKINS AND MR MANNING ATF THE BANKRUPT ESTATE OF MS WILKINSON

1. Within 45 days, the first respondent give the trustees vacant possession of B Street, Suburb C in the State of Victoria, being the land more particularly described in certificate of title volume ... folio ... ("the property").
2. Should the first respondent fail to comply with order 1, there be a warrant of possession issued pursuant to r.11.01(1)(c) and r.11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 in respect of the property.
3. For the purposes of order 7.2 made on 10 August 2022:

(a) the interest payable by the first respondent to the trustees as at today's date is $26,855.74;

(b) the trustees' expenses as at today's date are $3,000.00; and

(c) the trustees' legal costs as at today's date are $6,000.00.

1. The application in proceeding filed on 18 September 2025 by the first respondent be dismissed.
2. Each party bear their own costs of the first respondent's application in a proceeding filed on 18 September 2025.

1. Section 114Q of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application for enforcement of final property orders that were made on 10 August 2022 by consent. The applicant in the substantive proceeding was the husband. The first respondent was the wife. The wife was bankrupt. The second respondent was the wife's trustees in bankruptcy.
2. The wife's interest in the former matrimonial home in Suburb C ("the property") vested in her trustees. The final orders provided for the husband to buy out the trustees' interest in the property by the payment of:

(a) $80,000 by 10 February 2023; and

(b) $50,000 by 10 August 2024.

1. The husband did not make either of those payments. On 8 May 2025, the trustees filed an application in a proceeding seeking enforcement. The respondents to that application were the husband and the wife. The enforcement application came on for hearing during an interim hearing week on 23 September 2025. The trustees and the husband were legally represented at the enforcement hearing. The wife did not appear at the enforcement hearing. She probably did not need to be joined to the enforcement application because no orders were sought against her, and her interests were finally determined in the substantive proceeding.
2. Towards the end of the enforcement hearing, I made the orders set out at the beginning of this judgment. I then said:

I think I've explained along the way why I've settled upon these orders, but does anyone want me to provide further reasons?

1. No one said they did, so I did not formally provide oral reasons at the time. However, later that afternoon, after the court had adjourned for the day, the trustees contacted my chambers and said they required written reasons. In the circumstances, I consider that it is open to me to now provide comprehensive reasons, as the court can pronounce orders and provide written reasons later.

1. The consent orders made on 10 August 2022 provided for:

(a) the husband to pay the trustees $80,000 by 10 February 2023; and, contemporaneously

(b) the trustees to transfer their interest in the property to the husband, even though the husband was required to pay the trustees another $50,000 18 months later.

1. The consent orders provided that the trustees could lodge a caveat over the property to protect their interest pending payment of monies due under the consent orders.
2. The consent orders then provided that, upon the transfer, the property would be charged with the payment of all amounts outstanding under the orders, including the payment of $50,000, by 10 August 2024. If the husband defaulted for more than 21 days, the trustees would be appointed as trustees for the sale of the property.
3. The consent orders further provided in order 6.3:

The Trustees be entitled to:

6.3.1 Their reasonable costs, at their usual hourly rates, associated with their appointment as Trustees for sale of the [Suburb C] property and the Sale generally (The Trustees' Costs).

6.3.2 Interest, at the rate set out in Rule 10.17 of the FCFCOA Rules 2021 (Interest) on all amounts due, but not paid, to the Second Respondents (either in that capacity or in their capacity as the Trustees) from the date those amounts first fell due to the date paid;

6.3.3 Their reasonable expenses as the Trustees, including but not limited to the costs of the Valuer, the costs of the Conveyancer, any further outlays occasioned by the Sale, including the costs of preparing the [Suburb C] property for sale (the Trustees' Expenses).

Pending the Applicant's compliance with his obligations pursuant to the First and Second Payment or the costs associated with the sale of the [Suburb C] property, the Applicant shall:-

9.1 Be restrained by injunction restraining the Applicant from dealing with, disposing of, the [Suburb C] property other than pursuant to the terms of these Orders, including but not limited to increasing the debit balance of the mortgage by redraw or other encumbrances save and except to the extent that such increases be so increased in order to solely meet the First and/or Second Payments and or any other amounts becoming due under these Orders [.]

1. The trustees filed an application for enforcement on 8 May 2025. In their application, they said that they did not require an enforcement hearing. Instead, they said they wanted a warrant for possession of the property in accordance with a form 68B warrant for possession which they attached. The form 68B was a County Court form. It appears that this court does not have an approved form for a warrant of possession. The husband was the only respondent to the enforcement application at that stage.
2. The application for a warrant of possession was supported by an affidavit sworn by Mr D on 7 May 2025. In his supporting affidavit, Mr D said that:

(a) he was the solicitor for the trustees;

(b) the husband had failed to pay the first and second payments by the due dates or at all;

(c) on 18 May 2023, he had written to the husband's solicitors saying that the trustees required him to vacate the property by 29 June 2023; and

(d) on 16 June 2023, the husband's solicitors asked by email for the matter to be listed for directions before Judge Harland but her Honour denied that request.

(a) the application for enforcement filed on 8 May 2025;

(b) the affidavit sworn by Mr D on 7 May 2025;

(c) an enforcement hearings brochure; and

(d) a covering letter.

1. A judicial registrar conducted a hearing on 17 June 2025, at which the trustees and the husband were legally represented. The registrar ordered that the wife be joined to the proceedings and adjourned the matter to 15 July 2025. The registrar's orders noted that:

(a) the husband had informed the court that the $130,000 would be paid by 4 July 2025 and the parties had consequently consented to an adjournment; and

(b) the parties were continuing their negotiations about interest and costs.

1. The judicial registrar heard the matter again on 15 July 2025. The husband had not paid the $130,000 by that time. A notation to the orders stated that the husband's application to the Commonwealth Bank for finance was unsuccessful. The judicial registrar adjourned the matter for an enforcement hearing before a senior judicial registrar on 19 August 2025.
2. The husband affirmed an affidavit on 31 July 2025 in which he said:

(a) he was 58 years old;

(b) he works as a tradesman and has a modest income;

(c) he had two children with the wife;

(d) they are now adults and have no contact with their mother;

(e) the wife had two daughters from a previous relationship and a son, Mr E, from an extra-marital affair who the husband raised as his own children;

(f) he had an informal property settlement with the wife in 2017, when they separated;

(g) he paid her $40,000 but did not organise for her interest in the property to be transferred to him;

(h) she subsequently became bankrupt and her half of the property vested in the bankruptcy trustee;

(i) he arranged to refinance the property to make the $80,000 payment to the trustees on 10 February 2023;

(j) his solicitors contacted the trustees' solicitors to arrange settlement (so that the whole property could be transferred to the husband as per the orders made on 10 August 2022) but the trustees' solicitors did not respond to the husband's solicitors' messages or respond to their PEXA workspace invitation;

(k) on 2 February 2023, the trustees' solicitors telephoned the husband's solicitors and said it was too early to transfer the property to the husband, even though that is what the orders made on 22 August 2022 required, and requested further documents, including recent home loan statements, a loan approval letter and a discharge form;

(l) on 8 February 2023, the husband's solicitors requested an update from the trustees' solicitors but they did not respond to the request;

(m) the settlement could therefore not occur on 10 February 2023;

(n) the husband's solicitor sent the trustees' solicitors a further message on 14 February 2023 which they did not respond to;

(o) the husband's solicitors sent the trustees' solicitors an email on 28 February 2023 summarising all the calls and emails the husband's solicitors had sent and saying the trustee was now in breach of the orders;

(p) the husband proposed that Mr E would take a 20% interest in the property but not be on the mortgage, and Mr E's contribution would be paid to the trustees, and the mortgage would only increase minimally;

(q) on 3 March 2023, the trustees' solicitors emailed the husband's solicitors saying they were not satisfied with the finance approval letter (in that the mortgage might allow borrowings over $390,000) and saying they wanted Mr E to sign a deed of charge as he was not bound by the orders made on 10 August 2022 (the deed of charge would have made Mr E responsible for the $130,000 plus the costs, interest and expenses of the trustees);

(r) on 9 March 2023, the solicitors for the trustees advised that they were satisfied that the husband's loan would not allow borrowings above $390,000 but they still wanted Mr E to sign the deed of charge;

(s) the husband's solicitors advised the trustees' solicitors that:

(i) the trustees were only entitled under the orders to their reasonable costs in the event of a default; and

(ii) it was not reasonable or necessary for Mr E to be party to the deed;

(t) the trustees' solicitors responded that point (i) was technically correct, but only if the husband strictly complied with the orders which he was not proposing to do, and point (ii) failed to appreciate that Mr E taking a 20% interest in the property would complicate enforcement, if it came to that;

(u) in view of this stalemate, the husband's finance fell through;

(v) the husband's solicitors advised him that he would need to bring an enforcement application; however, to save costs, they just emailed Judge Harland's chambers seeking a hearing but that request was declined;

(w) the husband obtained further finance in September 2024; the trustees accepted an invitation to a PEXA workspace; however, they did not provide timely instructions on settlement and confirmation that settlement could proceed so, again, settlement did not occur;

(x) the husband does not dispute that he owes $130,000 to the trustees but does dispute the quantum of interest and costs the trustees claim;

(y) after the husband was served with the enforcement application, he made another application for finance with the Commonwealth Bank for settlement on 4 July 2025, but his application was not successful;

(z) on 16 July 2025, the ANZ Bank approved the husband's application for a loan of $415,000; with a mortgage of $280,000, that meant he had $135,000;

(aa) the husband's solicitors proposed to the trustees' solicitors that he pay $130,000 on 31 July 2025, and the interest and costs be left for later determination;

(bb) on 24 July 2025, the trustees' solicitors wrote to the husband's solicitors, saying he had deliberately restricted his application for refinance to the amount that he wished to pay;

(cc) the husband's solicitors emailed the trustees solicitors later on 24 July 2025 suggesting that the trustees remove their caveat to allow the settlement to go ahead with the payment of $130,000 on 31 July 2025, with the caveat to be relodged immediately after;

(dd) the trustees' solicitors did not respond; and

(ee) the husband has always paid the mortgage, and thereby increased the equity in the property.

1. On 7 August 2025, a senior judicial registrar made orders extending the time for the trustees to serve the wife.
2. On 19 August 2025, a senior judicial registrar made orders adjourning the matter to me on

23 September 2025. The orders noted that, although the matter was listed to an interim hearing slot (where the normal expectation is that the matter will take less than two hours), the senior judicial registrar was not confident that the matter could be confined to two hours. 3. The senior judicial registrar also ordered on 19 August 2025, after a number of unsuccessful attempts to serve the wife, that she could be served by email at her last known address. 4. On 20 August 2025, Mr D affirmed another affidavit. It set out the matters required by r.11.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. 5. In summary, the trustees calculated the amount payable to them by the husband up to and including the hearing date on 23 September 2025, not including the costs of actually selling the property, to be $222,147.30, consisting of:

(a) $130,000, being the $80,000 plus the $50,000 payments due on 10 February 2023 and 10 August 2024 respectively;

(b) interest of $26,855.74;

(c) professional fees for the trustees of $9,781.40; and

(d) legal fees payable to the trustees' solicitors and counsel of $55,510.

1. Under Division 60 of Schedule 2 to the Bankruptcy Act 1961, trustees in bankruptcy are entitled to remuneration for necessary work properly performed in the administration of the bankruptcy, that is, professional fees. Trustees in bankruptcy are also entitled to recover disbursements, such as legal fees that they have paid. The trustees' remuneration and legal costs are normally paid from the bankrupt estate. However, sometimes, there are insufficient funds in the bankrupt estate to meet a trustees' fees for necessary work properly performed. That is a risk that trustees in bankruptcy are alert to when they accept an appointment as a bankruptcy trustee in a particular case. In the present case, the trustees were seeking that the husband, rather than the bankrupt estate, pay their remuneration and legal costs. That application was made by reference to the final consent orders made on 10 August 2022.
2. On 18 September 2025, the husband filed an application in a proceeding in which he sought:

(a) four months to pay the $130,000; and

(b) the calculation of interest, the trustees' professional fees and legal costs under the orders made on 10 August 2022 to be set at zero.

1. Mr D affirmed another affidavit on 18 September 2025 in which he said:

(a) the trustee had statutory obligations to act in the best interests of the creditors of the wife's bankrupt estate, including by realising her interest in the property;

(b) at the enforcement hearing before a senior judicial registrar on 19 August 2025, the husband wrongly submitted that the senior judicial registrar had power to vary the final orders made by Judge Harland on 10 August 2022;

(c) the husband agreed that it was appropriate to refer the matter to a judge;

(d) in early September 2025, the trustees and the husband agreed that there would be a partial settlement on 16 September 2025, at which:

(i) the trustees would lift their caveat on the property; and

(ii) the husband would pay the trustees $130,000;

(e) it was also agreed that the husband would sign a deed of charge permitting the trustees to reinstate their caveat on the property once the new mortgage was registered, and the caveat would protect the trustees' claim for interest and costs, which would be worked out later;

(f) however, instead of proceeding with the settlement on 16 September 2025, the husband filed his application in a proceeding seeking orders that he pay the $130,000 four months after the orders were made;

(g) on 15 September 2025, the husband's solicitors provided the trustees with a mortgage discharge request form, even though the husband's solicitors had not sent a PEXA invitation or returned the signed deed of charge;

(h) on 16 September 2025, the husband's solicitors wrote to the trustees' solicitors saying that the trustees' solicitors, through their inefficiency, had prevented settlement occurring, even though the husband's solicitors had not sent the deed of charge, and even though the ANZ Bank had not accepted the PEXA invitation;

(i) the trustees and the husband then argued about whether the discharge form provided by the trustees was adequate;

(j) on 17 September 2025, the husband provided the signed deed of charge to the trustees' solicitors;

(k) the trustees' solicitors were ready to proceed with settlement on 17 September 2025 in the PEXA workspace, but the outgoing mortgagee had not accepted the PEXA invitation to allow settlement to occur;

(l) on 17 September 2025, the trustees' solicitors wrote to the husband's solicitors proposing consent orders whereby:

(i) the trustees would be granted a warrant of possession over the property;

(ii) the husband would pay the trustees interest of $26,645.24 (calculated to 17 September 2025);

(iii) the husband would pay the trustees $69,585.55 for their professional fees and legal expenses;

(m) on 16 September 2025, the husband's solicitors advised that they would not be able to file the husband's further affidavit by 4pm on 16 September 2025, as required by the orders made on 19 August 2025;

(n) the interest as at 23 September 2025 would be $26,855.74;

(o) the trustees' professional fees as at 23 September 2025 would be $10,172.40;

(p) the trustees' legal costs as at 23 September 2025 would be $76,229.15; and

(q) with the $130,000, that would make a total of $243,257.29.

1. Kara Albore, the solicitor for the husband, affirmed an affidavit on 18 September 2025 in which she said:

(a) at the attempted settlement in October 2024, the trustees' solicitors accepted the PEXA invitation as a caveator but not on behalf of the wife, who was still on title, although her interest in the property had vested in the trustees;

(b) also, the trustees' solicitors did not properly complete the discharge form;

(c) the settlement was abandoned;

(d) in relation to the attempted settlement in September 2025, the deed of charge provided by the trustees' solicitors had errors in it, including errors in the spelling of the husband's name;

(e) the trustees' solicitors provided a signed discharge form, but it was password protected, and they did not immediately provide the password;

(f) when the discharge form was accessed, it was the discharge form signed in 2023, but it had expired as they are only valid for three months;

(g) instead of the trustees signing the same discharge form as the husband had signed, they signed a separate one, which complicated matters;

(h) the trustees' solicitors were clearly not familiar with the requirements of PEXA;

(i) the husband's solicitors were hopeful that the husband could pay $130,000 to the trustees on 19 September 2025, ahead of the hearing on 23 September 2025.

1. On 18 September 2025, Mr D swore a further affidavit. It was substantially the same as his previous affidavit.

1. The trustees sent to chambers, during the course of the enforcement hearing before me, a revised minute of their proposed orders in which they sought orders that:
   1. Within 28 days of the date of this Order, the First Respondent is to cause vacant possession of the property, being the land described in Certificate of Title Volume [...] Folio [...], being the property located at [B Street, Suburb C] in the State of Victoria (the Property), to be yielded up to the Trustees.
   2. Should the First Respondent fail to comply with Order 1 of the Orders herein, there be a warrant of possession issued pursuant to Rule 11.01(1)(c) and Rule 11.56 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) that (sic)
   3. The First Respondent pay interest to date to the Trustees in the amount of $26,855.74, plus any additional interest until payment of all amounts due have been paid.
   4. The First Respondent pay the Trustees' legal costs to date in the sum of $48,000.00.
   5. The First Respondent pay the Trustees their reasonable professional costs to date of $10,172.40 pursuant to Order 6.3.1 of the Final Order of Judge Harland entered on 10 August 2022, plus any additional professional costs so incurred occasioned by the sale of the Property.
   6. The First Respondent's Application in a Proceeding filed on 18 September 2025 be dismissed.
   7. The First Respondent pay the Trustees' costs of an incidental to the First Respondent's Application in a Proceeding filed on 18 September 2025 fixed in the sum of $5,000.00.
2. It was within the contemplation of the parties that the husband would attempt to pay all the amounts determined to be outstanding before the time specified in proposed order 1, although the husband asked for 60 days, rather than 28 days. Later, the trustees agreed to 45 days. I accepted that the time in proposed order 1 ought to be 45 days, on the basis that the husband would be able to get the required money, or not, within that time, and further time would not assist him.
3. The husband did not dispute that he had to pay the $130,000, being the payment of $80,000 and the payment of $50,000. He disputed the amounts claimed by the trustees for:

(a) interest, being $26,855.74;

(b) professional fees, being $10,172.40;

(c) legal costs of the application for enforcement, being $48,000.00; and

(d) legal costs of the husband's application in a proceeding filed on 18 September 2025, being $5,000.00.

1. The husband did not dispute the calculation of interest. However, he argued that he should not have to pay any interest at all, or the trustees' professional fees or the trustees' legal costs. The husband argued that he had stood ready to make the payments by the due dates, but the trustees had obstructed him. The husband said that he had obtained a loan, and arranged with his son, Mr E, to take a 20% interest in the property. However, the husband said that the trustees unreasonably required Mr E to enter into a deed of charge. As recounted above, that deed of charge would have exposed Mr E to a liability for the $130,000, plus interest, plus the trustees' professional fees and their legal costs.
2. The trustees argued that they had indulged the husband's position, but he had not co-operated by signing the deed of charge.
3. The husband argued that he was entitled under order 9 of the final orders made by consent on 10 August 2022 to mortgage the property for the purposes of paying the debt. That order provided that:

Pending the Applicant's compliance with his obligations pursuant to the First and Second Payment or the costs associated with the sale of the [Suburb C] property, the Applicant shall:-

9.1 Be restrained by injunction restraining the Applicant from dealing with, disposing of, the [Suburb C] property other than pursuant to the terms of these Orders, including but not limited to increasing the debit balance of the mortgage by redraw or other encumbrances save and except to the extent that such increases be so increased in order to solely meet the First and/or Second Payments and or any other amounts becoming due under these Orders;

...

1. The husband is correct that, under the final consent orders made on 10 August 2022, he was entitled to mortgage the property to pay the debt to the trustees. I also accept that the trustees were unreasonable in requiring Mr E to sign the deed of charge. That deed of charge, some of the terms of which are set out above, would have unfairly and excessively exposed Mr E to liability for the $130,000, plus any interest accruing, plus the trustees' fees and costs, which, as can be seen, are very substantial.
2. The trustees argued that they needed Mr E to sign the deed of charge in case the second payment was not made and they needed to seek partition in the Supreme Court. However, I do not accept that argument. Mr E's 20% interest in the property would have come out of the husband's 50% interest, so the trustees would still have had their 50% share in the property to enable them to seek partition. It appears that what the trustees were really aiming for was another person to be liable for their interest, expenses and legal costs, as well as the $130,000.
3. I also accept that subsequent attempts to settle failed, as described above, largely due to the trustees' inefficiency, for want of a better word.
4. Having said all that, just because one option under the final consent orders made on 10 August 2022 was for the husband to mortgage the property, and that option could not be utilised, the husband was not relieved of the obligation to pay the $80,000 by 10 February 2023 and the $50,000 by 10 August 2024. He did not do so, and he is therefore liable for the interest claimed of $26,855.74.
5. Obviously, if the trustees were being obstructive, the husband could have filed an application in a proceeding, as his solicitors advised him to do, in March 2023, and the court would have clarified the position and made any necessary machinery orders. Alternatively, the trustees could have brought an application in a proceeding at the same time. This would have saved everyone a good deal in legal costs and professional expenses.
6. As to the trustees' professional expenses, order 6 of the final consent orders made on 10 August 2022 provided that:

In the event that the Applicant defaults on his obligations under these Orders and such default continues for a period of twenty one (21) days (the Grace Period) the following shall occur:-

6.1 The Second Respondents:-

6.1.1 Be appointed jointly and severally as trustees (the Trustees) for the sale of the [Suburb C] property (the Sale);

6.1.2 Are to, within twenty one (21) days of expiry of the Grace Period, appoint a real estate agent to conduct the Sale;

6.1.3 May require the Applicant and all occupants of the [Suburb C] property to yield up vacant possession to facilitate the Sale by providing the Applicant and/or the Applicant's lawyer not less than twenty one (21) days express notice that vacant possession is so required;

...

6.3 The Trustees be entitled to:

6.3.1 Their reasonable costs, at their usual hourly rates, associated with their appointment as Trustees for sale of the [Suburb C] property and the Sale generally (The Trustees' Costs).

6.3.2 Interest, at the rate set out in Rule 10.17 of the FCFCOA Rules 2021 (Interest) on all amounts due, but not paid, to the Second Respondents (either in that capacity or in their capacity as the Trustees) from the date those amounts first fell due to the date paid;

6.3.3 Their reasonable expenses as the Trustees, including but not limited to the costs of the Valuer, the costs of the Conveyancer, any further outlays occasioned by the Sale, including the costs of preparing the [Suburb C] property for sale (the Trustees' Expenses).

1. These orders mean that, 21 days after the husband defaulted, that is, on 3 March 2023, the trustees were appointed, by virtue of the final consent orders made on 10 August 2022, as trustees for the sale of the property. The trustees were then also entitled to vacant possession of the property and could have sought a warrant of possession at that time. However, the trustees did not do that. Instead, they entered into discussions with the husband to reach a settlement. The trustees described that as the trustees giving the husband an indulgence. However, it is more likely that the discussions were seen as being of mutual benefit to both parties.
2. Pursuant to order 6.3.1 of the final consent orders, the trustees at that time were entitled to:

[T]heir reasonable costs, at their usual hourly rates, associated with their appointment as Trustees for sale of the [Suburb C] property and the Sale generally ...

1. That is, the trustees were entitled to their reasonable costs, in the sense of their professional fees. They were not entitled to excessive or unreasonable costs.
2. The trustees were entitled to reasonable costs for their appointment as trustees for sale. There were no such costs, because the appointment occurred pursuant to the final consent orders made on 10 August 2022. The trustees must agree with that, as they did not seek an order for their appointment as trustees for the sale of the property.
3. The trustees were also entitled to their reasonable costs, in the sense of professional fees, for the sale of the property. Although the parties could have agreed in their proposed final consent orders for an enforcement warrant to be issued, whereby an enforcement officer of the court would effect the sale of the property, they agreed that the trustees could effect the sale, and recover from the husband their professional fees and costs for doing so.
4. On a strict reading of the final consent orders, the trustees are only entitled to their costs, in the sense of professional fees, associated with the actual sale of the property. On a strict view, that would not include their application for a warrant of possession, as arguably, that step precedes the actual sale of the property. However, I consider that to be too strict a reading of the orders. That is, I accept that the trustees are entitled to their reasonable costs, in the sense of professional fees, for the enforcement application.
5. I do not consider that the back and forth between the trustees and the husband attempting to settle the matter can properly be regarded as reasonable costs of the sale. The back and forth, whoever is to blame, preceded the enforcement application. The husband would not have contemplated, when he entered into the final consent orders, that he would be responsible for all of the trustees' professional fees for trying to settle the matter.
6. An application for a warrant of possession is intended to be very straightforward and not very costly. Unfortunately, in this case, there were a number of hearings of the enforcement application before registrars that did not resolve the matter. Mr D basically said that the hearing on 19 August 2025 was wasted, because the husband argued that the senior judicial registrar could vary orders made by a judge. That misrepresents the husband's argument. The fact that the hearings before the registrars did not resolve the matter was not the husband's fault.
7. All in all, I consider that the trustees are only entitled to their reasonable professional fees for the application for a warrant of possession itself, if it had proceeded in the normal manner. In my estimation, that would be $3,000. The husband should not be required to pay the trustees' professional fees for the negotiations before the trustees applied for the warrant of possession, nor for the hearings before registrars that were not fruitful.
8. Under order 6.3.3 of the final consent orders made on 10 August 2022, the trustees were entitled to recover from the husband their reasonable disbursements, including their reasonable legal costs. A fair reading of order 6.3.3 is that it concerns the disbursements associated with the sale of the property, such as the costs of a valuer and conveyancer. I also consider that it extends to the trustees' reasonable legal costs for the application for the warrant of possession. I do not consider that order 6.3.3 extends to the back and forth that preceded the application for a warrant of possession. That view is taken in the context that, generally, parties do not recover legal costs for attempts at settlement that precede litigation. That is partly because those attempts are seen as being of mutual benefit.
9. Trustees are accustomed to being indemnified for virtually all of their costs and expenses from the applicable bankrupt estate. However, that does not mean that it is necessarily fair or reasonable to require another party to legal proceedings to pay for all of a trustee's legal expenses. In the present case, the orders made on 10 August 2022 do not require the husband to pay the trustees' legal costs for the back and forth that preceded the application for the warrant of possession. Moreover, the amount claimed by the trustees in this case for legal costs is not reasonable. In my view, a reasonable figure for the legal costs that the husband should be required to pay the trustees, under order 6.3.3 of the final consent orders made on 10 August 2022, for the application for the warrant of possession is $6,000.
10. If the husband does not make the required payments in time, and the property has to be sold, there will obviously be additional costs and expenses that will be payable to the trustees from the proceeds of sale.
11. Regarding the legal costs of the husband's application in a proceeding filed on 18 September 2025, it was heard at the same time as the trustees' application for enforcement, so it did not warrant additional legal costs for the hearing. Otherwise, the parties were each somewhat successful in their claims in relation to the husband's application in a proceeding, so they should each bear their own costs of it.
12. There will be orders accordingly.
13. I would add that, after I indicated that I was inclined to make the orders outlined above in relation to the trustees' professional fees and legal costs, the husband said he accepted them. I then expressly asked the trustees if they wished to argue against them. They did. They made the arguments addressed above, and said that they had tried to assist the husband, and were only asking for a fraction of their actual fees and expenses. I said that, if the trustees did not want to attempt to settle the matter, they could have brought an enforcement application long ago, and not accrued excessive legal and professional fees, which they could not expect the husband to pay. I then pronounced the orders as set out at the beginning of these reasons.
14. After the orders were pronounced, the trustees asked to be able to make further submissions in relation to their professional and legal costs after the property was sold. I refused that application, saying that the husband needed a fixed amount to be able to make the necessary payment, to avoid a sale of the property. I also said that the application was listed for hearing on 23 September 2025, and the trustees needed to be ready to argue their case on that day. The husband had certainly telegraphed in his material that he was challenging the amount of the trustees' expenses and costs. There was no justification for the trustees not being ready to fully argue that issue on 23 September 2025.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley.