Wallin v MJB Building Services Pty Ltd

FEDERAL COURT OF AUSTRALIA

Wallin v MJB Building Services Pty Ltd
[2002] FCA 426

BANKRUPTCY – appeals from sequestration orders

Bankruptcy Act 1966 (Cth), s 52

GRAHAM WALLIN and PAULA WALLIN v MJB BUILDING SERVICES PTY LIMITED
N 1375 OF 2001
N 1376 OF 2001

GYLES J
SYDNEY
8 APRIL 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1375 OF 2001 N 1376 OF 2001

BETWEEN:	GRAHAM WALLIN and PAULA WALLIN APPELLANTS
AND:	MJB BUILDING SERVICES PTY LIMITED RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	8 APRIL 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Each appeal be dismissed.

2.The appellants pay the costs of the respondent, including reserved costs.

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 1375 OF 2001 N 1376 OF 2001

BETWEEN:	GRAHAM WALLIN and PAULA WALLIN APPELLANTS
AND:	MJB BUILDING SERVICES PTY LIMITED RESPONDENT

JUDGE:	GYLES J
DATE:	8 APRIL 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. These are two appeals from sequestration orders made on 25 September 2001 by Raphael FM against each of Graham Wallin and Paula Wallin.  The appeals have been heard together.

2. The ground of appeal taken by Paula Wallin is:

   “His Honour was misled, and mistaken as to the facts, and failed to take relevant considerations into account causing bias that has led to an incorrect decision.  Irrelevant considerations were taken into account.  I was denied access to legal advice and have not been able to put all evidence to the Court.  Reliance on a High Court Fencing decision by the other side proves fraud.”

3. The grounds of appeal taken by Graham Wallin are:

   “1.      His Honour was misled.

   2.Mistaken as to the facts.

   3.Bias.”

4. The creditor’s petition was dated 23 July 2001 and was in the following terms (so far as is relevant):

   “1.The Respondent Debtors owe the Applicant Creditor the amount of $59,722.00, being costs arising out of proceedings in the Land and Environment Court and being the amount of the Judgment upon which the Bankruptcy Notice was based, namely Judgment of the District Court of New South Wales at Newcastle, in proceedings numbered 184 of 2000, on 25 February 2000, which Judgment includes an amount of $121.00 for “costs of attempting to enforce the Judgment”, plus costs and interest thereon.

   2.The Applicant Creditor does not hold security over the property of the Respondent Debtors.

   3.The Respondent Debtors were at the date of the commission of the act of bankruptcy specified in paragraph 4 personally present in Australia.

   4.The following act of bankruptcy was committed by the Respondent Debtors within six months before the presentation of this petition:  the Respondent Debtor Graeme Wallin (also known as Graham Craig Wallin) failed on or before 14 May 2001 either to comply with the requirements of a Bankruptcy Notice served upon him on 23 April 2001 or to…