Nguyen v Pascoe [2006] FCA 719

FEDERAL COURT OF AUSTRALIA

Nguyen v Pascoe [2006] FCA 719 PRACTICE AND PROCEDURE – leave to appeal from a Federal Magistrate's refusal to set aside orders made by him ex parte on a trustee's application for relief under s 30 of the Bankruptcy Act in respect of a property jointly owned by the bankrupt and his wife in which the wife claimed a 100% equitable interest Held: leave to appeal granted, appeal allowed and matter remitted to the Federal Magistrates Court of Australia for hearing Bankruptcy Act 1966 (Cth) ss 30(1)(a) and (b), 58(1)(a) and (2), 156A(3) Federal Court of Australia Act 1976 (Cth) ss 24(1A), 25(1A) Federal Magistrates Court Rules 2001 (Cth) Part 13 Rule 13.03A(d), 16.05(1) and (2)(a) Federal Court Rules Order 52 Rules 5(2) and 5(3), Order 52 Rule 18(1), Order 62 Re Bilen; Ex Parte Sistrom [1985] FCA 141 referred to Bienstein v Bienstein (2003) 195 ALR 225 applied Re Luck (2003) 203 ALR 1 referred to Shocked v Goldschmidt [1998] 1 All ER 372 applied Calverley v Green (1985) 155 CLR 242 referred to Muschinski v Dodds (1985) 160 CLR 583 referred to Baumgartner v Baumgartner (1987) 164 CLR 137 referred to Parsons v McBain (2001) 109 FCR 120 referred to LIEN THI KHUAT NGUYEN v SCOTT DARREN PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF THANH Y NGUYEN NSD 495 OF 2006 GRAHAM J 8 JUNE 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 495 OF 2006

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: LIEN THI KHUAT NGUYEN

APPELLANT

AND: SCOTT DARREN PASCOE AS TRUSTEE OF THE BANKRUPT ESTATE OF THANH Y NGUYEN

RESPONDENT

JUDGE: GRAHAM J

DATE OF ORDER: 8 JUNE 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. In respect of the application for leave to appeal filed 4 May 2006, compliance with Order 52 rule 5(2) be dispensed with. 2. Leave be granted to the appellant to appeal from the judgment of Federal Magistrate Raphael delivered on 16 February 2006 in proceedings SYG3351 of 2005 in the Federal Magistrates Court of Australia. 3. The appeal be allowed. 4. The orders numbered 1 to 8 inclusive made by Federal Magistrate Raphael on 16 February 2006 and entered on 3 March 2006 be set aside. 5. The respondent's application filed 16 November 2005 be remitted to the Federal Magistrates Court of Australia for hearing. 6. The respondent's Notice of Motion filed 18 May 2006 be dismissed. 7. There be no order as to costs in respect of the application for leave to appeal, the appeal or the respondent's motion. 8. The appellant pay the costs of the respondent of and incidental to the hearings in the Federal Magistrates Court of Australia on 6 December 2005 and 16 February 2006 on an indemnity basis, such costs to be taxed, in the absence of agreement thereon, in accordance with Order 62 of the Federal Court Rules. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.