Combe v Pascoe

[2004] FCA 725

FEDERAL COURT OF AUSTRALIA

Combe v Pascoe [2004] FCA 725

BANKRUPTCY – application for summary dismissal – order appealed from complied with – no matter of principle – notice of appeal dismissed

FAYE DIANE COMBE v SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF FAYE DIANE COMBE

N 2507 OF 2003

CONTI J
3 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2507 OF 2003

BETWEEN:	FAYE DIANE COMBE APPELLANT
AND:	SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF FAYE DIANE COMBE RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	3 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of appeal filed 22 December 2003 be dismissed.

2.        The costs of the appeal and of the motion be costs in the administration 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 2507 OF 2003

BETWEEN:	FAYE DIANE COMBE APPELLANT
AND:	SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF FAYE DIANE COMBE RESPONDENT

JUDGE:	CONTI J
DATE:	3 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 22 December 2003, the appellant (Ms Combe) filed a notice of appeal against the whole of the judgment of Federal Magistrate Raphael given on 2 December 2003, whereby his Honour ordered Ms Combe, upon the application of Mr Pascoe as trustee in bankruptcy of Ms Combe’s property (‘Mr Pascoe’), to vacate the home property comprising an asset of her bankrupt estate.

2. I have been informed by Counsel for Mr Pascoe that the order has been complied with by Ms Combe, in that she subsequently vacated the property.  I refused an application for a stay of the order by Ms Combe on 12 February 2004.  Subsequently the property was sold, but the proceeds of sale are apparently insufficient to pay out in full the creditors of her bankrupt estate.  The petitioning creditor was Anthony Ziade, Ms Combe’s former solicitor, to whom a significant amount was claimed to be owed for legal costs arising out of certain Family Court proceedings. 

3. Counsel for Mr Pascoe further informed the Court that Ms Combe has been invited to withdraw the above notice of appeal, but she has not done so.  She did not appear at the appointment to settle the index, and no index has therefore been settled for the appeal. 

4. The creditors of Ms Combe are apparently at least the following:

   (i)        Mr Ziade, hr former solicitor;

   (ii)       Acuiti Legal, the solicitors for Law Cover;

   (iii)      Mrs Combe’s former husband; and

   (iv)      Mr Pascoe’s costs of administration generally.

5. On 12 February 2003, in addition to dismissing the notice of motion referred to in [2] above, I dismissed two other notices of motion filed by Ms Combe, one for the grant of pro bono assistance from a lawyer on the ‘Probono Panel’, and the other ‘… for leave to file a fresh notice of motion for such relief as this court is empowered to give me’ (Combe v Pascoe [2004] FCA 90).

6. Ms Combe remains without legal representation.

7. The notice of appeal of Mrs Combe against the orders of Raphael FM given on 2 December 2003 nevertheless remains on foot despite the order being complied with.  Understandably, Mr Pascoe is anxious to be discharge from his office with the minimum of ongoing legal and administration costs.  Whilst he remains in office, costs are necessarily incurred for the further detriment of creditors in the bankruptcy. 

8. The grounds of appeal put forward by Ms Combe are as follows:

   ‘The petition creditor [of course Mr Ziade] has obtained the judgment on which the Bankruptcy notice was made by fraud or perverting the course of justice.’

9. In support of her opposition to the orders now sought by Mr Pascoe, Mrs Combe assembled a lengthy affidavit of 23 May 2004.  It is readily apparent from my perusal of the content of that affidavit, undertaken by me in advance of the hearing, that it contains in particular material concerning her ongoing disputes with Mr Ziade, related to his legal costs’ assessments made in relation to work he undertook for Ms Combe, and payments he has received or appropriated in payment thereof.  Objection was taken to the admissibility of the whole of the affidavit on behalf of Mr Pascoe, on grounds of relevance as well as form.  It is not possible to distil therefrom any material viable to Ms Combe’s opposition to the present application of Mr Pascoe.

10. The following paragraphs of Mrs Combe’s affidavit provide a sufficient picture of the nature of at least part of the ongoing dispute which the applicant wishes to pursue against Mr Ziade:

    ‘22.I spent numerous days during March and April objecting to the Bills of Costs in a general way only to be told by the Supreme Court that Lawcover and Mr Ziade’s bills had already been paid in October 2003 and assessed in November 2003 without objection and they were surprised that I had been asked to object only after the bills were settled. “Shanti” from the Supreme Court said the matter was “bizarre”.

    23.The respondent was advised in October 2003 again that Mrs Therese Bechara was still prepared to pay the proven assessed amount and there was no need to sell my home, which would leave me homeless and without resources.

    24.In spite of these assurances the respondent still refused to send Bills of Costs to me or Mr Allan Farrar solicitor so that the creditors could be paid.

    25.The respondent also refused to object to the Bills of Costs and refused to allow me access to the files as is required to be able to object to the Bills of costs in spite of the fact that he did possess these files prior to sending them to the costs assessor Mr C.J. Boyd-Boland.

    26.The respondent also refuses to request that Mr Ziade account for my assets in Mr Ziade’s possession in his Trust accounts and misled me regarding his possession of these files needed by the costs assessor and myself.

    27.The petitioning creditor Mr Anthony Ziade has already been paid for the legal fees for the Family Provision matter 3254/90 the subject of this bankruptcy notice/matter/appeal, out of trust accounts in his possession and control and he refuses to provide evidence that he did not take this money in the early 1990’s as instructed by me in December 1990.

    28.I have again contacted the Legal Aid Commission for legal assistance but I have not yet been contacted back.’

11. In my opinion, the interests of justice clearly require that completion of the winding-up of the bankrupt estate of Ms Combe takes place without further delay, so that she can pursue her complaints and claims against Mr Ziade without the intervention of her trustee in bankruptcy.  Otherwise Ms Combe’s sense of grievance in relation to the conduct of Mr Ziade will cause the administration of this bankrupt estate to extend indefinitely into the future, perhaps well beyond the stage where there remains any funds in the hands of Mr Pascoe, after ongoing legal costs dissipate whatever even presently remains.

12. In her address to the Court in support of her resistance to the relief presently sought by Mr Pascoe, Ms Combe traced some of her history of involvement in disputes, directly or indirectly, with her former husband and with Mr Ziade.  Much of that history, even if sustainable by legally admissible evidence, cannot upon my reading of her affidavit material advance any conceivable viability to Ms Combe’s presently outstanding appeal, which has not been prosecuted to date beyond the filing of a notice of appeal. 

13. It is readily apparent that even apart from the merit of Mr Pascoe’s present application to the Court, the administration of Ms Combe’s bankrupt estate must be brought to an end without further delay and expense.  As I further explained to her in the course of her address to the Court, if her claims of fraud or other professional misconduct, said to have been committed by Mr Ziade, have any substance, a matter of course upon which I can express no opinion, she may conceivably be able to ventilate the same in subsequent civil litigation, once discharged from bankruptcy.  Alternatively it may well be of greater benefit to Ms Combe’s own best interests to put the whole of her asserted unfortunate experiences of the past few years well behind her, and to concentrate her undoubted energy and intelligence upon avenues of endeavour and opportunity totally divorced from all the disputes in which she has been now engaged for so long without any apparent success. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             11 June 2004

Solicitor for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	BJ Skinner
Solicitor for the Respondent:	Haylen McKenzie
Date of Hearing:	3 June 2004
Date of Judgment:	3 June 2004