Pascoe v GRAHAM Wallin - [2002] FMCA 111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v GRAHAM WALLIN

[2002] FMCA 111

BANKRUPTCY – Application for vacant possession of property – application for writ of possession upon failure to give vacant possession of property.

Bankruptcy Act 1966 (Cth) ss. 58, 157

Applicant:

SCOTT DARREN PASCOE
(AS TRUSTEE OF THE PROPERTY
OF GRAHAM WALLIN)

Respondent:

GRAHAM WALLIN

File No:

SZ 309 of 2002

Delivered on:

17 June 2002

Delivered at:

Sydney

Hearing Date:

12 June 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitor for the Respondent:

Mr Peter Haylen of Haylen McKenzie

ORDERS

(1)The respondent vacate the premises known as 29 Frederick Street Dudley in the State of New South Wales being all that land contained in volume 14046 folio 82 within 42 days of the entry of the orders in these proceedings.
(2)In the event that the respondent fails to give vacant possession of the property described above in accordance with Order (1) above, a writ of possession issue forthwith.
(3)The applicant’s costs of these proceedings be paid in priority out of the property of the bankrupt estate of the respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 309 of 2002

SCOTT DARREN PASCOE
(AS TRUSTEE OF THE PROPERTY OF GRAHAM WALLIN)

Applicant

And

GRAHAM WALLIN

Respondent

REASONS FOR JUDGMENT

This is an application in the bankruptcy of GRAHAM WALLIN by his trustee Mr SCOTT PASCOE. The application was filed on 13 May 2002 and sought eight orders. Those orders related to a property known as 29 Frederick Street Dudley, New South Wales, in respect of which Mr Wallin is alleged to be the registered proprietor.
Mr Wallin was made bankrupt pursuant to a sequestration order dated 25 September 2001. He appealed against the making of that order from this court to the Full Court of the Federal Court of Australia. On

8 April 2002 Justice Gyles heard the appeal and dismissed it. In his reasons for judgment, Gyles J sets out some of the history of this lengthy matter.
Upon the making of a sequestration order the property of the bankrupt vests forthwith in his registered trustee (s.58(1)(a) Bankruptcy Act 1966 (Cth)). Thus the trustee, Mr Pascoe, is the equitable owner of the property identified by CT volume 14046 folio 82 known as 29 Frederick Street Dudley, New South Wales. The trustee now seeks by way of this application assistance to become registered as the proprietor, an order that the bankrupt vacate the property and a writ of possession, together with consequential orders for costs.
The application as originally drafted asked the court to make orders which would have the effect of requiring Mr Wallin either to deliver up the certificate of title to the property or to sign a statutory declaration indicating what had happened to it. It was said that these orders were required because the Land Titles Office of NSW would not register the transmission from the bankrupt to his trustee without sighting the original certificate of title or dealing with that certificate as if it had been lost.
When the matter came before me, Mr Wallin was called to be cross-examined on certain affidavits which he had filed. The real purpose of that cross-examination was to obtain admissions from Mr Wallin concerning the whereabouts of the certificate of title. Those were obtained. It appears that the certificate of title was handed to Mrs Wallin at some time in 1997 and whilst it was possibly seen in the possession of Mr and Mrs Wallin’s solicitor shortly thereafter it has not been seen since. I understand from counsel who appeared on behalf of the trustee that this evidence given by Mr Wallin if reproduced for the benefit of the Land Titles Office should be sufficient to convince that Office to permit a transmission. It is of course open to the trustee to join the Land Titles Office in these proceedings so that I can make a direct order requiring the office to effect the transmission, but this was not done and may well not be necessary.
Mr Wallin was also cross-examined about his current circumstances so that I should have some evidence from which I could make a decision as to whether or not to make an order requiring him to vacate the property and the length of time which he should be given in order to do this. Mr Wallin lives in the property alone. From time to time his son visits him there but does not stay and he has little in the way of possessions. The trustee wishes to sell the property as he believes it is a major (if not the only) asset of Mr Wallin’s bankrupt estate.
Mr Wallin resists this application and in addition has made his own application to put on a cross-claim and to bring in a number of additional persons into the proceedings. He filed two affidavits on 4 June 2002, two affidavits on 11 June 2002 and an affidavit on 12 June 2002, all of which I have read. I am satisfied that the affidavits do not provide any legal basis upon which I should decline to make orders requiring Mr Wallin to vacate the premises, nor to grant a writ of possession in the event that he does not voluntarily vacate them. I am satisfied from the evidence which I heard from him that Mr Wallin is the registered proprietor of the premises.
In regard to the application which Mr Wallin has made to join other parties to the proceedings, I decline to grant it. The persons sought to be joined are various.
The first are the estate of the principal of a company known as MJB Building Services Pty Limited and that company who were parties to the original proceedings with Mr Wallin which resulted in orders for costs upon which the bankruptcy proceedings were based. Those proceedings were concluded some time ago after resort to all appeal processes. The parties who Mr Wallin wishes to join are strangers to these proceedings and, so far as I can understand it, have nothing to do with the cross-claim as explained to me by Mr Wallin with which I shall deal later.
The second person sought to be joined is Mr Haylen, the applicant’s solicitor. The only allegations made which might involve Mr Haylen seem to be those contained in paragraphs 7 and 7.1 of a document entitled ‘Facts and Pleadings’ attached to the Notice of Motion:
“7. The Applicant alleges the Respondents have made misrepresentations, and done wrongfull (sic) acts and/or omissions, to pervert the course of justic (sic), that is not consistant (sic) to the virtue of the Federal Magistrates Court Rules 2001, (Statutory Rules 2001 No 195). And the Applicant alleges the Respondents have breached, Part 9, Rule 9.02(2) Change of Lawyer, -and- Part 9, Rule 9.03, (1), (3) (a) (b) Withdrawal as lawyer.
And/or, in the alternative:
7.1 The Applicant alleges the Respondents have made misrepresentations, and one wrongfull (sic) acts and/or omissions, to pervert the course of justic (sic), that is not consistant (sic) to the virtue of the Federal Court Rules, (Reprint 5). And the Applicants alleges the Respondents have breached, Order 45, Solicitors, Rule 4, Change of agent.”
I find these paragraphs difficult to comprehend and I do not believe the interests of justice will be served by the joinder of Mr Haylen to a cross-claim in the present proceedings based upon these allegations.
The third person sought to be joined is Mr Greg Gilmour who is a solicitor with Messrs McNeil James, the trustee’s former solicitors. For reasons similar to those expressed above, I do not believe it is appropriate to join him in the proceedings.
The final person sought to be joined is Mr Pascoe himself. Mr Pascoe is already a party to the proceedings.
I asked Mr Wallin to explain to me in a comprehensible manner exactly what his cross-claim was. He responded that it amounted to an application to remove the trustee based upon:
a)The fact that the trustee had not responded to requests by him for information; and
b)That the trustee and his advisers had misled the court.
In my view these matters are not appropriate as a cross-claim to an application by a trustee in bankruptcy for the type of orders sought in these proceedings. If Mr Wallin wishes to air these matters the appropriate course is to bring an application which clearly sets out the relief sought, the basis upon which that relief is sought and is accompanied by an affidavit setting out in terms that can be easily understood the facts and circumstances which amount to evidence supporting the allegations made. In preparing such an application, Mr Wallin will no doubt take into account the wording of s.157 of the Bankruptcy Act.
As far as the Notice of Motion is concerned I would dismiss it.
I have taken into account the representations made by Mr Wallin concerning his personal circumstances. I believe he should be given a reasonable time to vacate the premises and this I have done in the orders which I make.
I was pressed by the solicitor for the applicant, on instructions, to make an order in the form of paragraph 4 of the application requiring Mr Wallin to provide a statutory declaration to the trustee. I do not propose to do this. Mr Wallin has explained the position regarding the certificate of title on to the transcript and I trust that this should be sufficient for the Land Titles Office.
I make the following orders:
(1)I order that the respondent vacate the premises known as
29 Frederick Street Dudley in the State of New South Wales being all that land contained in volume 14046 folio 82 within 42 days of the entry of the orders in these proceedings.
(2)In the event that the respondent fails to give vacant possession of the property described above in accordance with Order (1) above, a writ of possession issue forthwith.
(3)The applicant’s costs of these proceedings be paid in priority out of the property of the bankrupt estate of the respondent.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: