Pascoe v Paula Wallin - [2002] FMCA 112

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pascoe v Paula Wallin

Details

AGLC: Pascoe v Paula Wallin [2002] FMCA 112
Case: [2002] FMCA 112
Decision Date: 17 June 2002

CaseChat Overview and Summary

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.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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