Combe v Pascoe

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…