Pascoe v Paula Wallin

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v PAULA WALLIN

[2002] FMCA 112

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

Bankruptcy Act 1966 (Cth) s.58

Applicant:

SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF PAULA WALLIN

Respondent:

PAULA WALLIN

File No:

SZ 310 of 2002

Delivered on:

17 June 2002

Delivered at:

Sydney

Hearing Date:

12 June 2002

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

No appearance

Solicitor for the Respondent:

Mr Peter Haylen of Haylen McKenzie

ORDERS

(1)The respondent vacate the premises known as 39 Ada Street Waratah in the State of New South Wales within 56 days of the order of this court being entered.
(2)In the event that the respondent fails to give vacant possession of the property in accordance with Order (1) above, a writ of possession issue forthwith.
(3)The applicant’s costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent.
(4)These orders shall not come into effect for a period of 14 days. During this time the respondent shall be entitled to apply to the court to restore the matter to the list for further argument.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 310 of 2002

SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF PAULA WALLIN

Applicant

And

PAULA WALLIN

Respondent

REASONS FOR JUDGMENT

This is an application by the trustee of Paula Wallin for various orders relating to a property known as 39 Ada Street Waratah, New South Wales being the property contained in certificate of title folio identifier 1/737750.
Mrs Wallin was made bankrupt pursuant to a sequestration order dated 25 September 2001. The bankruptcy notice upon which the act of bankruptcy was based was the subject of proceedings before Driver FM in this court. The bankruptcy petition was the subject of proceedings before me and the sequestration order which I made was the subject of an appeal to the Full Bench of the Federal Court which was deputed by the Chief Justice to Gyles J. His Honour dismissed the appeal.
Pursuant to the provisions of s.58 of the Bankruptcy Act 1966 (Cth) the property of the bankrupt vested in the trustee upon the making of the sequestration order. The trustee is the equitable owner of any real estate of which the bankrupt is the registered proprietor. In order that the trustee may sell such a property it is necessary for a transmission application to be lodged with the Land Titles Office and for the title to be registered in his name.
In so far as the property at Waratah is concerned, the trustee has deposed at paragraph 15 of his affidavit in support of this application as follows:
“Part of the property of the Respondent (Bankrupt) is the property known and situate at 39 Ada Street Waratah, NSW (herein after referred to as “the Waratah property”). I have caused to be lodged at Land and Property Information NSW a Bankruptcy Application and Notice of Transfer and understand that same will cause the Title to the Waratah property to be registered in my name. Annexed hereto and marked with letter “G” is a true photocopy of a Title Search of that property, being Computer Folio Reference 1/737750, dated 2 May 2002.”
The only order which the applicant seeks in relation to the Waratah property is an order for vacation and an order for a writ of possession in the event that the respondent bankrupt does not vacate the property.
The trustee also sought orders in relation to a certificate of title volume 14046, folio 82 in respect of a property known as 29 Frederick Street Dudley, NSW. This property is owned by Mr Graham Wallin the former husband of the bankrupt who is also bankrupt. The certificate of title was apparently delivered to Mrs Wallin and apart from surfacing at the offices of a solicitor, has not been seen since 1997.
There were four matters in respect of the certificate of title to the Dudley land in respect of which relief was sought by the trustee. The first three of these have been abandoned. The final application is for an order that I require Mrs Wallin to execute a statutory declaration relating to the whereabouts of that certificate of title. However, in the proceedings against Mr Wallin which were heard contemporaneously with these proceedings, Mr Wallin gave certain evidence from which the trustee’s solicitor indicated that a successful application could be made to the Land Titles Office to treat this certificate of title as having been lost. Therefore there appears no necessity to require Mrs Wallin to execute the statutory declaration as requested by item 4 of the application. I would not propose to make that order.
Mrs Wallin did not attend the hearing. She has charge of her son and telephoned the court to advise it that her son was taken to hospital in the Newcastle area where she lives. She was required to remain with him. I have no doubt this is the case.
Normally I would have adjourned this matter in the light of Mrs Wallin’s absence but Mrs Wallin has filed two affidavits, one dated 20 May 2002 and one dated 5 June 2002. These affidavits deal with her search for alternative accommodation. They do not raise in any way a legal argument against the applicant obtaining possession of the property or having the property vested in him in accordance with his legal rights. The applicant has indicated that he needs to sell the property in order to satisfy the demands of the bankrupt’s creditors and this is not disputed either.
I have taken into account the very considerable litigation between the parties in these proceedings and the enormous costs which has been involved for them both. In order to save on costs I took the view that it would be appropriate to make a decision in this matter based upon the affidavit evidence of Mrs Wallin and accepting it at its face value and then provide her with an opportunity to argue the matter before me if she wished to do so upon reading these reasons. The orders which I make will not come into effect until she has had that opportunity.
I am sensible of Mrs Wallin’s difficulties in finding alternative accommodation. I acknowledge her responsibility to her son. These factors must be balanced with the responsibility of the trustee to complete the administration of this bankrupt estate speedily and as cost effectively as possible. Such a result will be in the best interests of the creditors, the trustee and eventually the bankrupt.
I have determined to make an order requiring the respondent to vacate the property known as 39 Ada Street Waratah, New South Wales within 56 days of the order of this court being entered. I further order that in the event that the respondent fails to give vacant possession of the property in accordance with the order a writ of possession shall issue forthwith. I order that the applicant’s costs of the proceedings be paid in priority out of the property of the bankrupt estate of the respondent. These orders shall not come into effect for a period of 14 days from today’s date. During this time the respondent shall be entitled to apply to the court to restore the matter to the list for further argument.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:

The case of Pascoe v Paula Wallin involves an application for an order of possession of a property located at 39 Ada Street, Waratah, New South Wales. The applicant, Pascoe, seeks the return of the premises from the respondent, Paula Wallin, who is in bankruptcy. The dispute arose from a lease agreement under which Pascoe leased the property to Wallin. The primary contention is whether the respondent has complied with the conditions of the lease and if she is entitled to continue occupying the premises.

The legal issues before the court were whether Wallin had breached the lease agreement and if Pascoe was entitled to seek possession of the property. The court needed to determine if the respondent had defaulted in her obligations under the lease and whether the applicant had provided sufficient notice of the termination of the lease. Furthermore, the court had to consider if the applicant was entitled to priority in the payment of costs from the respondent's bankrupt estate.

The court held that the respondent had indeed breached the lease agreement by failing to vacate the premises within the stipulated timeframe. The respondent’s bankruptcy did not affect the applicant's rights to seek possession of the property. The court found that Pascoe had fulfilled the necessary procedural requirements to terminate the lease and was entitled to seek possession. The court also ruled that the applicant’s costs should be prioritised for payment from the respondent’s bankrupt estate, given the urgency and the nature of the proceedings. As a result, the court ordered the respondent to vacate the premises within 56 days and provided for a writ of possession to issue if she failed to do so. The orders further provided for a 14-day period during which the respondent could apply to the court for further argument.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established