Wallin v Pascoe [2002] FCA 1259

FEDERAL COURT OF AUSTRALIA Wallin v Pascoe [2002] FCA 1259 PAULA J WALLIN aka MILLER v SCOTT DARREN PASCOE N 7209 of 2002 STONE J 11 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7209 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PAULA J WALLIN aka MILLER

APPELLANT

AND: SCOTT DARREN PASCOE

RESPONDENT

JUDGE: STONE J

DATE OF ORDER: 11 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The respondent's costs be paid in priority out of the property of the bankrupt estate of the appellant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7209 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: PAULA J WALLIN aka MILLER

APPELLANT

AND: SCOTT DARREN PASCOE

RESPONDENT

JUDGE: STONE J

DATE: 11 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from two judgments given by Raphael FM on 17 June and 28 June 2002 respectively. Before describing the nature of those judgments, and the appeal, it is necessary that I give a brief background to the history of the proceedings. On 25 September 2001, sequestration orders were made against the appellant, Mrs Paula Wallin, and her husband, Mr Graham Wallin. Gyles J dismissed appeals from these orders on 8 April 2002. The respondent, Mr Pascoe, was appointed trustee of the bankrupt estates. 2 On 17 June 2002, Raphael FM ordered inter alia that the appellant vacate premises known as 39 Ada Street, Waratah ("the property"), within 56 days of the order of the Court being entered. The appellant apparently lived at the property, separately from Mr Wallin, with their 11 year old son. Although the appellant had filed affidavits in the proceeding, she was not able to be present at the hearing because her son was in hospital. For this reason his Honour stayed the order for a period of 14 days, during which time the appellant was entitled to apply to the Court to restore the matter for further submissions and argument. The appellant exercised this right and on 28 June 2002 his Honour heard further argument. The appellant, however, was not successful in persuading his Honour to vary his previous order that she vacate the property. Relevantly, in his judgment dated 28 June 2002, Raphael FM stated, at [2]: "none of the points which [the appellant] has made go to the heart of the matter, and that is the trustee's legal right to exercise the powers to sell the bankrupt's property, which is required of him by the Bankruptcy Act."