Wallin v Pascoe [2002] FCA 1259 (11 October 2002)

Last Updated: 14 October 2002

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."

His Honour noted that his previous orders had been taken out, but that they would not come into effect until 1 July 2002. In those circumstances, he did not propose any alteration to his order that the appellant vacate the property.

3 By notice of appeal filed on 8 July 2002 the appellant sought to appeal from the whole of both of the judgments of Raphael FM. The grounds of appeal and orders sought are set out in an amended notice of appeal filed on 23 September 2002. They are as follows:

"GROUNDS

(i) Failure to take into account a relevant consideration,

(ii) His Honour was mistaken as to the facts,

(iii) Insufficient evidence with which to decide.

ORDERS SOUGHT

1. A stay of the Orders in the Federal Magistrates Court matter of SZ-310 of 2002, given on 17 June 2002, and Sequestration Orders given on 25 September 2001.

2. Leave / Permission of the Court to continue the New South Wales Supreme Court Equity Division File Number: 3692 of 2001 Matter

3. Order for dismissal of trustee and appointment of another Trustee.

4. Any other appropriate Orders."

The fact that the appellant is unrepresented is apparent from the drafting of these orders, the second and third of which do not have any apparent relation to the orders of Raphael FM which are the subject of this appeal. No particulars have been provided in respect of the grounds of appeal and no effort has been made to address the grounds of appeal as listed in the amended notice of appeal.

4 It should be noted that the appellant, in previous appearances before me, has confirmed that she has in fact vacated the property. According to an affidavit sworn by the respondent on 9 October 2002, the appellant in fact vacated the property on or about 26 August 2002. According to the same affidavit, the respondent became the registered proprietor of the property on 4 July 2002 and the property is to be put to public auction on 2 November 2002. It therefore seems that there is little utility in the appeal.

5 In any event, the appellant has failed to show any error on the part of Raphael FM in reaching the conclusions he did. Two affidavits were filed on behalf of the appellant by Mr Wallin. Neither of these affidavits address the subject matter, and are in fact irrelevant, to the appeal.

6 It is understandable that the appellant has sought to delay, or challenge, the orders of Raphael FM, given that they involve the appellant's home, which was also her son's home. Raphael FM acknowledged the appellant's situation in both his judgments. I share his Honour's view. There is nothing, however, to be gained from futile attempts to interfere with the judgments of his Honour. All that results from such attempts is that the respondent needlessly incurs further costs.

7 As I understand it, the appellant's financial problems stem from an unsuccessful application to the Land and Environment Court that resulted in costs being awarded against her and Mr Wallin. This eventually led to her bankruptcy. Sequestration orders were made and an appeal against those orders was dismissed by Gyles J. The effect of the sequestration orders was to vest title to the property in the respondent. The respondent is not only entitled to realise the assets in the bankrupt estate but more importantly, has a duty to creditors to do so. This appeal is really based on the appellant's inability, or refusal, to accept the legal situation in which she finds herself. She has brought, unsuccessfully, numerous proceedings in this Court and in the Federal Magistrates Court seeking, in one way or other, to frustrate the bankruptcy and the administration of her estate. This has led to delay in the administration of the estate and the accumulation of more costs by the respondent for which, ultimately, the appellant is responsible. The respondent has acted responsibly and with consideration throughout. He has endeavoured, in detailed letters to the appellant, to explain her situation and the implications of the course she has taken. This has been to no avail. In a letter dated 1 October 2002 the solicitors for the respondent indicated that persistence in this conduct may lead to the respondent seeking to have the appellant declared a frivolous and vexatious litigant. This is not an issue that I have been asked to decide and it is inappropriate that I should express an opinion. However, the procedural history that I have outlined should prompt the appellant to treat this as a serious possibility.

8 While recognising the appellant's sincere and obvious distress at losing her home, the Court cannot countenance continual obstruction to the respondent's exercise of his obligations under the Bankruptcy Act 1966 (Cth). For these reasons the appeal must be dismissed. The respondent has asked for an order that his costs be paid in priority out of the property of the bankrupt estate of the appellant. There is nothing before me to indicate that such an order should not be made and I so order.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 11 October 2002

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	B J Skinner
Solicitor for the Respondent:	Haylen McKenzie
Date of Hearing:	11 October 2002
Date of Judgment:	11 October 2002