Wallin v MJB Building Services

[2002] FMCA 207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALLIN & ANOR v MJB BUILDING SERVICES & ANOR [2002] FMCA 207

BANKRUPTCY – Stay of proceedings – previous proceedings in the Federal Magistrates Court subject to appeals in the High Court and the Federal Court – no prior stay granted – lapse of time - inappropriateness of stay in the circumstances.

Bankruptcy Act 1966 (Cth), ss. 37, 52
Federal Magistrates Court Rules 2001(Cth)

First Applicant:

Second Applicant:

GRAEME WALLIN

PAULA WALLIN

First Respondent:

Second Respondent:

MJB BUILDING SERVICES PTY LTD

SCOTT DARREN PASCOE

File No: SZ454 of 2001

Delivered on: 10 September 2002

Delivered at: Sydney

Hearing Date: 10 September 2002

Judgment of: Driver FM

REPRESENTATION

The applicants appeared in person

Solicitors for the First Respondent: Mr P Haylen
Haylen McKenzie

Counsel for the Second Respondent: Mr B Skinner

ORDERS

1. That the applicant William Albert Wallin be deleted from the application.

2. Application dismissed.

3. Applicants to pay the respondents’ costs of and incidental to the application, in accordance with the Federal Magistrates Court Rules 2001 (Cth) and the Bankruptcy Act 1966 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ454 of 2001

GRAEME WALLIN

Applicant

PAULA WALLIN

Second Applicant

And

MJB BUILDING SERVICES PTY LTD

Respondent

SCOTT DARREN PASCOE

Second Respondent

REASONS FOR JUDGMENT

1. I have before me for ex tempore judgment an application seeking a stay of bankruptcy proceedings relating to a sequestration order made by Federal Magistrate Raphael on 25 September 2001 (although apparently not entered until 8 November 2001).  The application is supported by affidavits filed by the applicants, Paula Jacqueline Wallin and Graeme Craig Wallin.  A third applicant, William Albert Wallin, is a child and I ordered earlier in these proceedings today that his name be removed as an applicant as he does not have a litigation guardian.  The application simply seeks a stay of bankruptcy proceedings following the sequestration order entered in November last year.

2. The Court has no general power to suspend the operation of the administration of a bankruptcy. That much is clear from s. 37(2) of the Bankruptcy Act 1966 (Cth). Under s. 52(3) the Court is empowered to grant a stay of proceedings under a bankruptcy for a maximum period of 21 days. That power is sometimes used at the time a sequestration order is made where there is to be an appeal against the sequestration order. In this instance Mr and Mrs Wallin could not recall whether a stay was sought from Federal Magistrate Raphael at the time he made the sequestration order. They did appeal to the Federal Court against the sequestration order but the appeal was dismissed by Gyles J on 8 April 2002.

3. I am told that the applicants have applied to the High Court for special leave to appeal against that decision of the Federal Court and I am told that the applicants are seeking from the High Court a stay of bankruptcy proceedings in connection with that special leave application.  The other relevant decision in the matter is the decision of Federal Magistrate Raphael on 17 June 2002 to make orders requiring the applicants to vacate two house properties for the purposes of the administration of the bankruptcy.  The applicants have appealed to the Federal Court against those orders and I am told that they are seeking a stay of those orders in the Federal Court.  That appeal has not yet been dealt with by the Federal Court.  I do not know whether Raphael FM was asked to stay his orders pending that appeal.  It seems, in any event, that no stay was granted by this Court.

4. In the circumstances, I am of the view that there is no basis upon which it is either possible or appropriate for me to grant this stay sought.  The Federal Court will deal in due course with the issue of the stay in relation to the orders made by Federal Magistrate Raphael on 17 June.  The High Court will deal in due course with any other issue of a stay arising in connection with the special leave application.  It is inappropriate, in my view, for the present applicants to seek to return to this Court, having now reached the High Court on the making of the sequestration order, to seek to obtain a stay of proceedings under the sequestration order.  The time for seeking such a stay in this Court has long since past.

5. I doubt that I have any jurisdiction to grant the relief sought and if I did have jurisdiction I would not be minded to grant it in the circumstances.  Therefore, I will dismiss the application.

6. I indicated to the applicants earlier this morning that if they were resolved to continue with these proceedings it would be likely that after proceedings were heard and determined that I would feel compelled to make a costs order.  The proceedings were not discontinued but were pursued this morning and the applicants have been wholly unsuccessful.  In the circumstances in accordance with ordinary principles the respondents are entitled to a costs order.

7. I see no reason to deprive the respondents of an order for costs and I will therefore order that the respondents’ costs of and incidental to the application in accordance with the scale of costs in the Federal Magistrate's Court Rules 2001 (Cth).

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  24 September 2002