Combe v Pascoe

FEDERAL COURT OF AUSTRALIA

Combe v Pascoe [2004] FCA 90

BANKRUPTCY – no matters of principle involved

FAYE DIANE COMBE v SCOTT DARREN PASCOE

N 2507 OF 2003

CONTI J
12 FEBRUARY 2004
SYDNEY

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

BETWEEN:	FAYE DIANE COMBE APPLICANT
AND:	SCOTT DARREN PASCOE RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	12 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Notice of Motion filed 22 December 2003 by the applicant to stay the sequestration order against the applicant made on 2 December 2003 be dismissed.

2.Notice of Motion filed 22 December 2003 by the applicant to stay the application under Part 12 of the Federal Magistrates Court Rules for pro bono assistance be dismissed.

3.Notice of Motion filed today ‘… for leave to file fresh Notice of Motion for such relief as this court is empowered to give me’ (under Order 80, Federal Court) be dismissed.

4.The applicant to pay the respondent’s costs of the applications.

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 APPLICANT
AND:	SCOTT DARREN PASCOE RESPONDENT

JUDGE:	CONTI J
DATE:	12 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant was made bankrupt on 15 October 2002, by order of Federal Magistrate Raphael, on the application of Anthony Ziade, after Gyles J had dismissed her application to set aside the bankruptcy notice upon which the sequestration order was based.  The respondent was appointed Trustee of the applicant’s estate.  That sequestration order had been in turn based on a District Court judgment entered by Judge Gibson against the applicant.

2. The applicant sought to appeal against that judgment 321 days out of time.  On 9 September 2002, Handley JA refused leave to the applicant to appeal to the Court of Appeal of New South Wales.

3. Part of the property of the applicant is a property at Castle Hill.  On 2 December 2003, Raphael FM made an order for vacant possession of the property at the instance of the respondent Mr Pascoe.  The applicant filed a notice of appeal against that order, and has sought a stay of the same.  The ground of appeal is that the District Court judgment, upon which the bankruptcy notice was based, was obtained by fraud and perverting the cause of justice.  No particularity of those very serious assertions appears in the notice of appeal.

4. The applicant took out two notices of motion of 22 December 2003, for the following relief:

   (i)        an application for pro bono assistance from a lawyer on the ‘Probono Panel’; and

   (ii)       the sequestration order be stayed and set aside.

5. The allegations in one accompanying affidavit were as follows:

   ‘…

   2.Evidence has come to light regarding a “perverting the course of justice” or “fraud” on behalf of the petitioning creditor.

   3.I have filed this…