Wallin v Pascoe

[2002] FCA 1240

FEDERAL COURT OF AUSTRALIA

Wallin v Pascoe [2002] FCA 1240

GRAHAM WALLIN v SCOTT DARREN PASCOE
N7208 OF 2002

STONE J
30 SEPTEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7208 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GRAHAM WALLIN APPELLANT
AND:	SCOTT DARREN PASCOE RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	30 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Costs in the matter be costs in the administration.

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 7208 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	GRAHAM WALLIN APPELLANT
AND:	SCOTT DARREN PASCOE RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	30 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 25 September 2001, Raphael FM made a sequestration orders against the appellant, Mr Graham Wallin, and his wife, Mrs Paula Wallin.  Gyles J dismissed appeals from these orders on 8 April 2002.  The respondent, Mr Pascoe, was appointed trustee of the bankrupt estates.  On 17 June 2002, Raphael FM ordered Mr Wallin to vacate the property known as 29 Frederick Street, Dudley (“the property”) where he lived alone.  Apparently Mrs Wallin lived separately from Mr Wallin.  It is not in contention that Mr Wallin vacated the property in accordance with the Raphael FM’s order.  He has, however, brought this appeal against the learned magistrate’s order.  The amended notice of appeal also refers to a judgment of Raphael FM delivered on 28 June 2002.  This appears to be an erroneous reference to a judgment delivered in respect of proceedings brought by Mrs Wallin to which Mr Wallin was not a party.

2. The grounds of appeal and the orders sought as set out in the amended notice of appeal filed on 23 September 2002 are as follows:

   “GROUNDS

   (i)        Failure to take into account a relevant consideration,

   (ii)        His Honour was mistaken as to the facts,

   (iii)       Insufficient evidence with which to decide.

   ORDERS SOUGHT

   1.A stay of the Orders in the Federal Magistrates Court matter of SZ-309 of 2002, given on 17 June 2002, and Sequestration Orders given on 25 September 2001.

   2.Leave / Permission of the Court to continue the New South Wales Supreme Court Equity Division File Number: 3692 of 2001 Matter

   3.Order for dismissal of trustee and appointment of another Trustee.

   4.Any other appropriate Orders.”

   The fact that the appellant is unrepresented is apparent from the drafting of these orders, the second and third of which do not have any apparent relation to the orders of Raphael FM which are the subject of this appeal.

3. In any event it would seem that this appeal is doomed to failure.  On 13 September 2002, Jacobson J refused an application made by Mr and Mrs Wallin to stay the sale of the property, which was scheduled for auction on the following day, 14 September 2002; see Wallin v MJB Building Services Pty Limited [2002] FCA 1187. Mr Wallin informed me that the property has in fact been sold. He was unable to explain to me how an order setting aside the order of Raphael FM to vacate the property could possibly have any utility in these circumstances.

4. It is an abuse of the processes of the Court for this matter to continue, it results not only in Mr Wallin incurring costs which he clearly cannot afford, but in the respondent needlessly incurring costs.  The Court has a duty to the respondent and to the creditors under the bankruptcy not to allow this to happen.  For these reasons the appeal must be dismissed.  Costs in this matter shall be costs in the administration.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            9 October 2002

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	B J Skinner
Solicitor for the Respondent:	Haylen McKenzie
Date of Hearing:	30 September 2002
Date of Judgment:	30 September 2002