Pascoe v Smirneos and Ors (No.2) - [2012] FMCA 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PASCOE v SMIRNEOS & ORS (No.2)

[2012] FMCA 462

BANKRUPTCY – Practice and procedure – trustee’s writ for possession in aid of trustees for sale of property of bankrupt – writ executed by Sheriff – previous occupiers resuming occupation without authority – writ of restitution ordered.

Federal Magistrates Court Rules 2001 (Cth), r.29.07
Uniform Civil Procedure Rules 2005 (NSW), r.39.1(1)(g)

Maher v Commonwealth Bank of Australia (No.2) (2004) 211 ALR 656, [2004] FCA 1398
Pascoe v Smirneos & Ors [2010] FMCA 404
Perpetual Limited v Kelso & Anor [2008] NSWSC 906

Ritchie’s Uniform Civil Procedure NSW, LexisNexis Butterworths, Sydney

Applicant:

SCOTT DARREN PASCOE,

IN HIS CAPACITY AS TRUSTEE
OF THE PROPERTY OF
HELEN SMIRNEOS, A BANKRUPT

First Respondent:

HELEN SMIRNEOS, A BANKRUPT

Second Respondent:

ANDREW SMIRNEOS

Third Respondent:

GEOFFREY REIDY,
IN HIS CAPACITY AS TRUSTEE
OF THE PROPERTY OF
PETER SMIRNEOS, A BANKRUPT

Fourth Respondent:

WESTPAC BANKING CORPORATION

ABN 33 007 457 141

Fifth Respondent:

NATIONAL LENDING PTY LIMITED

ACN 119 336 631

Sixth Respondent:

STEVE SMIRNEOS

Seventh Respondent:

PETER SMIRNEOS

Eighth Respondent:

BARBARA SMIRNEOS

File Number:

SYG 346 of 2010

Judgment of:

Smith FM

Hearing date:

21 May 2012

Delivered at:

Sydney

Delivered on:

21 May 2012

REPRESENTATION

Counsel for the Applicant:

Mr B Skinner

Solicitors for the Applicant:

Kemp Strang

Counsel for the First and Second Respondents:

Mr P Beazley

Solicitors for the First and Second Respondents:

Beazley Singleton

Counsel for the Third Respondent:

No appearance by or on behalf of the Third Respondent

Counsel for the Fourth Respondent:

No appearance by or on behalf of the Fourth Respondent

Counsel for the Fifth Respondent:

Mr D Tucker

Solicitors for the Fifth Respondent:

Tucker & Cowen

Counsel for the Sixth, Seventh and Eighth Respondents:

No appearance by or on behalf of the Sixth, Seventh and Eighth Respondents

ORDERS

The Applicant has leave for the issue of a Writ of Restitution to restore possession of the land comprised in Certificate of Title Folio Identifier 12/5/2166 being the land situated at and known as 124 Tennyson Road, Gladesville in the State of New South Wales (Property), to the Applicant and Mark Robinson, in their capacity as trustees for the sale of the Property.
The applicant has leave to issue that writ forthwith in terms of Form 62 approved for the purposes of the Uniform Civil Procedure Rules of NSW with such amendments as may appear necessary to a Registrar.
Orders 4 and 5 sought in the application in a case filed on 7 May 2012 are refused, without prejudice to any party who may wish to seek those orders in a later interim or other application to this Court or another Court.
The costs and expenses of the Applicant in relation to the application in a case are reserved, with liberty to apply.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 346 of 2010

SCOTT DARREN PASCOE,

IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF HELEN SMIRNEOS, A BANKRUPT

Applicant

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.

Keep reading for free

Create a free CaseChat account to read Pascoe v Smirneos and Ors (No.2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FMCA 462
Decision Date: 21 May 2012

CaseChat Overview and Summary

The case of Pascoe v Smirneos and Ors (No.2) involved the Applicant, seeking restitution of land situated at 124 Tennyson Road, Gladesville. The Applicant, along with Mark Robinson, sought to restore possession of the land to themselves as trustees for the sale of the property. The dispute arose from an earlier application, filed on 7 May 2012, which the Applicant sought to progress with further orders in the current case. The legal issues before the court were whether the Applicant had leave to issue a writ of restitution and, if so, what form it should take. Additionally, the court needed to consider whether other orders sought in the earlier application should be granted.

The court considered the procedural aspects of the application and the need for the writ of restitution. It was noted that the relief sought was to ensure that the Applicant could proceed with the sale of the property. The court emphasised the importance of the timely issuance of the writ to facilitate the sale and noted that any other orders not directly related to the restitution of the property were not appropriate for the current application. The court also addressed the costs, reserving them for later determination to allow for further applications if necessary.

Consequently, the court granted the Applicant leave to issue a writ of restitution to restore possession of the property to themselves and Mark Robinson, as trustees. The writ was to be issued forthwith, in terms of Form 62 of the Uniform Civil Procedure Rules of NSW, with necessary amendments. However, the court refused Orders 4 and 5 sought in the earlier application, without prejudice to any party seeking those orders in a different application. The costs and expenses of the Applicant were reserved for later determination.

Orders

Orders of the court

The Applicant has leave for the issue of a Writ of Restitution to restore possession of the land comprised in Certificate of Title Folio Identifier 12/5/2166 being the land situated at and known as 124 Tennyson Road, Gladesville in the State of New South Wales (Property), to the Applicant and Mark Robinson, in their capacity as trustees for the sale of the Property.

The applicant has leave to issue that writ forthwith in terms of Form 62 approved for the purposes of the Uniform Civil Procedure Rules of NSW with such amendments as may appear necessary to a Registrar.

Orders 4 and 5 sought in the application in a case filed on 7 May 2012 are refused, without prejudice to any party who may wish to seek those orders in a later interim or other application to this Court or another Court.

The costs and expenses of the Applicant in relation to the application in a case are reserved, with liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.