Wallin v MJB Building Services Pty Limited

[2002] FCA 1187

FEDERAL COURT OF AUSTRALIA

Wallin v MJB Building Services Pty Limited [2002] FCA 1187

GRAHAM CRAIG WALLIN & PAULA JACQUELINE WALLIN V MJB BUILDING SERVICES PTY LIMITED & SCOTT DARREN PASCOE
N 994 OF 2002

JACOBSON J
SYDNEY
13 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 994 OF 2002

BETWEEN:	GRAHAM CRAIG WALLIN FIRST APPLICANT
PAULA JACQUELINE WALLIN SECOND APPLICANT
AND:	MJB BUILDING SERVICES PTY LIMITED FIRST RESPONDENT
SCOTT DARREN PASCOE SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	13 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 994 OF 2002

BETWEEN:	GRAHAM CRAIG WALLIN FIRST APPLICANT
PAULA JACQUELINE WALLIN SECOND APPLICANT
AND:	MJB BUILDING SERVICES PTY LIMITED FIRST RESPONDENT
SCOTT DARREN PASCOE SECOND RESPONDENT

JUDGE:	JACOBSON J
DATE:	13 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from the transcript)

1. An application was made to me this evening at 5.00pm to stay the sale of the property at 29 Frederick Street, Dudley, New South Wales.  Mr and Mrs Wallin made the application.

2. The Wallins were made bankrupt on sequestration orders pronounced by Federal Magistrate Raphael on 25 September 2001.  An appeal was taken against the orders of Federal Magistrate Raphael to this court and on 8 April 2002 Gyles J ordered that the appeal be dismissed.

3. On 17 June 2002 Federal Magistrate Raphael made an order that Mr Wallin vacate the premises at 29 Frederick Street, Dudley within the period of time referred to in the judgment.  According to the judgment given by Federal Magistrate Raphael, at paragraph 6, Mr Wallin lived on the property alone.  Mrs Wallin apparently lived separately from Mr Wallin.  Mr Wallin informed me that he vacated the property in accordance with the orders made by Federal Magistrate Raphael.

4. A transcript has been taken of the matters put to me this afternoon by Mr and Mrs Wallin in support of their motions for a stay of the sale of the property.  They referred to the long history of proceedings, which resulted in the order made by the Land and Environment Court, which grounded the petition in respect of which the sequestration orders were made against the Wallins. 

5. At paragraph 19 of a judgment delivered by Federal Magistrate Driver on 5 September 2001 in matter numbers SZ249 of 2001 and SZ242 of 2001 the Federal Magistrate recorded that an appeal had been taken from the judgment of the Land and Environment Court to the Court of Appeal.  The Federal Magistrate states that the judgment of the Court of Appeal was quite dismissive of the appeal to it against the decision of the Land and Environment Court.  The Magistrate also recorded the proceedings in the High Court for special leave to appeal were dismissed by that court on 10 August 2001.

6. Nothing has been put before me this afternoon, which would warrant a stay of the proceedings.  Mr Wallin stated that the original judgment was obtained by fraud.  It seems to me that the short answer to that is that proceedings have been pursued as far as the High Court and all of the proceedings brought by Mr and Mrs Wallin have been dismissed.

7. Even if I had power to grant a stay, I would not in the exercise of my discretion do so.  The auction as I have said is to take place tomorrow, 14 September 2002, at 11.30 am.  I assume that the auction has been advertised and that any prospective purchasers will be present at the auction.  If the auction does not go ahead very substantial loss may be occasioned to the bankrupt estates of Mr and Mrs Wallin.

8. Although I gave them leave to appear before me this afternoon or this evening, strictly speaking they have no standing and in any event it must be perfectly clear that as bankrupts they are not in a position to give any form of undertaking to the court which would be able to compensate the creditors for any loss occasioned by the postponement of the auction.  Nor are they in a position to make any payment which would I assume have been incurred by the trustee in advertising and arranging the auction sale of the property for tomorrow morning.

9. Nothing that has been put by Mr and Mrs Wallin this evening as recorded in the transcript gives me any basis for ordering a stay of the bankruptcies or a stay of the auction of the property.

10. Accordingly, the application is dismissed and I do not propose to make any order in respect of costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            23 September 2002

Counsel for the Applicants:	Applicants appeared in person
Counsel for the First Respondent:	No appearance
Solicitor for the Second Respondent:	D G Bowles & Co
Date of Hearing:	13 September 2002
Date of Judgment:	13 September 2002