Pascoe v PAULA Wallin (No. 2)
[2002] FMCA 141
•28 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PASCOE v PAULA WALLIN (No. 2) | [2002] FMCA 141 |
| BANKRUPTCY – Application for vacant possession of property – application for writ of possession upon failure to give vacant possession of property. |
| Applicant: | SCOTT DARREN PASCOE AS TRUSTEE OF THE PROPERTY OF PAULA WALLIN |
| Respondent: | PAULA WALLIN |
| File No: | SZ 310 of 2002 |
| Delivered on: | 28 June 2002 |
| Delivered at: | Sydney |
| Hearing Date: | 28 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)Orders of 17 June 2002 to come into effect on 1 July 2002.
(2)Respondent pay the applicant’s costs in the sum of $350.00 to be paid in priority out of the property of the bankrupt estate of the respondent.
| 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
In this matter I gave a judgment on 17 June 2002 in an application by the bankruptcy trustee for possession of a property owned by the bankrupt, known as 39 Ada Street, Waratah. Because the bankrupt wasn't present at the hearing, although she had filed affidavits in the matter, I made an order that the decision which I had made should not come into effect for a period of 14 days, during which time the bankrupt could make an application to this court to be heard. Mrs Wallin exercised her right and she has today come to the court.
Mrs Wallin has spoken at length about the problems she faces if the property is sold, and these are accepted. It is never easy to lose one's home. However, none of the points which she has made go to the heart of the matter, and that is the trustee's legal right to exercise the powers to sell the bankrupt's property, which is required of him by the Bankruptcy Act. Mrs Wallin did say that the property was subject to Family Court proceedings, but there are two points in relation to that statement which need to be made.
The first is that it appears that it is not this property which is the subject of the legal Family Court proceedings, but a property owned by Mr Wallin at Dudley. I have already given judgement in relation to that property, and the matter before me today is not concerned with it. The second point is that I don't recall any evidence relating to those Family Court proceedings, but even if there had been some evidence relating to the Family Court proceedings, it would seem to me that the best that could occur would be for the proceeds of sale of that property to be divided in some way between Mr Wallin and Mrs Wallin. But as Mrs Wallin is also bankrupt, the proceeds would end up in the hands of the trustee in any event.
Mrs Wallin tells me that she has in fact managed to rent a flat, and she has taken out a seven-month lease. She also tells me that the home at Waratah has some problems that caused the health of her son to be affected. It seems that there may be some small benefit in her moving out, in any event. In the judgement which I handed down on 17 June, I gave an order that Mrs Wallin vacate the property within 56 days of the order of this court being entered.
The orders which I made have been taken out but they will not come into effect until 1 July and the time of 56 days will run from 1 July. In those circumstances, I do not propose to make any alteration to my order. Mrs Wallin has advised that she may well be out of the property within that time and no doubt if that occurs she will inform the trustee.
In the previous proceedings I made an order as to costs. Because Mrs Wallin did not appear at those proceedings there may well have been some savings in the costs. So in relation to today I propose to make my own assessment of the costs. Bearing that in mind, in accordance with the Federal Magistrate Court Rules I assess the costs payable by Mrs Wallin to the trustee, to be paid in priority out of the property of the bankrupt estate of the respondent, in the sum of $350.00.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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