FEDERAL COURT OF AUSTRALIA

Wallin v MJB Building Services Pty Ltd [2002] FCA 1355

Bankruptcy Act 1966 (Cth), s 52(3)

Re Wardle; ex parte Widin (1987) 70 ALR 633 referred to

Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 referred to

Grundy v Wattyl Australia [2002] FCA 615 referred to

GRAEME WALLIN & PAULA WALLIN v MJB BUILDING SERVICES PTY LTD & SCOTT DARREN PASCOE

N 1025 OF 2002

MOORE J

31 OCTOBER 2002

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeals be dismissed.

2.                  There be no order as to costs in the appeal concerning the estate of Ms Paula Wallin.

3.                  The trustee's costs of the appeal in the appeal concerning the estate of Mr Graeme Wallin be paid in priority out of the property of that estate.

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of Federal Magistrate Driver of 10 September 2002 in which he dismissed two applications.  Those applications were filed on 29 August 2002.  Each was an application by a bankrupt whose estates had been sequestrated by orders made on 25 September 2001 at a hearing of a creditor’s petition.

2                     The applications filed on 29 August 2002, in terms, sought orders to stay the bankruptcy proceedings.  By the time the matter reached this Court, the particular matter of concern to the bankrupts was the impending sale by auction (scheduled for Saturday 2 November 2002) by the trustee of a property that had been owned by Ms Paula Wallin.  When the matter came before Federal Magistrate Driver an issue arose about his power to make the orders sought.  His Honour concluded that he had no power to make the orders, and dismissed the application.  In my opinion he was correct in so concluding.  Section 52(3) of the Bankruptcy Act 1966 (Cth) has no relevance as the hearing of the creditor's petition had concluded over a year earlier: see: Re Wardle; ex parte Widin (1987) 70 ALR 633 at 635 and Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 at 302.  The stay sought was not in aid of any appeal from the Federal Magistrates Court concerning the sequestration orders: see Grundy v Wattyl Australia [2002] FCA 615 and the cases cited therein.  While there had been an appeal, it had been heard and determined months earlier by Gyles J in Wallin v MJB Building Services Pty Ltd [2002] FCA 426.  It follows that this appeal must inevitably fail given that the orders sought were orders the Magistrate could not have made in the circumstances.  Accordingly I propose to order that the appeal be dismissed.

3                     The trustee has sought an order that the trustee’s costs be paid in priority out of the property of the bankrupts' estate.  Whilst Mr Wallin, on behalf of both himself and his former wife, has indicated that such an order should not be made, it is an order of the type ordinarily made in proceedings such as this.

Associate:

Dated:              1 November 2002