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[2002] FMCA 111
plaintiff. Orders that the respondent vacate 29 Frederick Street Dudley within 42 days; if he fails to give vacant possession a writ of possession to issue forthwith; applicant's costs to be paid in priority...
After a sequestration order, the trustee sought possession of land registered in the bankrupt's name. The court accepted that the property vested in the trustee under Bankruptcy Act s58 and ordered the bankrupt to vacate within 42 days. The court refused to order a statutory declaration about a lost certificate of title because evidence given should suffice for the Land Titles Office, and it dismissed the bankrupt's convoluted cross-claim and joinder requests, directing that any complaints about trustee conduct be brought in a separate, properly pleaded application under s157.
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1,909 words · generated 17/08/2026
This was an application by a trustee in bankruptcy, Mr Scott Pascoe, seeking orders to take possession of real property that, on sequestration of the bankrupt, vested in him. The property was described as 29 Frederick Street Dudley, CT vol 14046 folio 82. The sequestration order had been made on 25 September 2001 and the bankrupt, Mr Graham Wallin, had unsuccessfully appealed that order to the Full Court (see Reasons [1]–[2]). The trustee filed the present application on 13 May 2002 seeking eight orders, among them that the bankrupt deliver up the certificate of title or give a statutory declaration about its whereabouts, an order that the bankrupt vacate the premises, a writ of possession if the bankrupt did not vacate, and costs paid in priority out of the estate (Reason [1]).
1 cited instrument linked from this judgment.
At hearing the magistrate (Raphael FM) called the bankrupt for cross-examination focused on the certificate of title and on his personal circumstances. The bankrupt admitted that the certificate of title had been handed to Mrs Wallin around 1997, and that it may have been seen in the possession of the family solicitor shortly thereafter but had not been seen since (Reason [5]). The bankrupt lived alone at the property, had few possessions, and his son visited from time to time (Reason [6]). The trustee said he wished to sell the property as a major asset of the estate (Reason [6]).
The bankrupt resisted the trustee's application and sought to file a cross-claim and to join various persons, including solicitors and estate representatives, advancing allegations of misrepresentation and misconduct. The court found those proposed interlocutory additions to be incoherent and without a sufficient legal basis in the present proceedings (Reasons [8]–[13]). The court refused to order production of the certificate or a statutory declaration where the oral and affidavit evidence should suffice for the Land Titles Office and declined to join the persons sought (Reasons [5], [18], [8]–[13]).
The court ordered the bankrupt to vacate the premises within 42 days and provided that, if he failed to do so, a writ of possession should issue forthwith. The court also ordered the trustee's costs to be paid in priority out of the bankrupt estate (Reason [19]).
The decision rests on three practical and statutory foundations.
First, the statutory vesting on sequestration. The court explicitly relied on s58(1)(a) of the Bankruptcy Act 1966, noting that upon sequestration "the property of the bankrupt vests forthwith in his registered trustee" and that the trustee is therefore the equitable owner of the identified property (Reason [3]). That statutory vesting provided the legal title basis for the trustee to seek orders to take possession and deal with the land as an asset of the estate.
Second, the court exercised procedural and equitable discretion to make possession orders appropriate to the trustee's need to realise estate assets, balanced against giving the bankrupt a reasonable time to vacate. The magistrate examined the bankrupt's living arrangements and possessions (Reason [6]) and concluded that giving him a reasonable period to vacate (42 days) was appropriate; the court also provided an immediate enforcement mechanism by ordering that a writ of possession issue if he did not vacate (Reason [19]).
Third, the court rejected the bankrupt's attempts to mix into the possession proceedings a set of claims and applications that were incoherent and inadequately pleaded. Raphael FM explained that challenges to the trustee's conduct or requests to remove the trustee should be pursued via a properly framed application and supported by affidavit evidence, taking into account s157 of the Bankruptcy Act (Reasons [14]–[16]). The court therefore dismissed the Notice of Motion and refused joinder of unrelated persons, emphasising proper procedure and the need for clear pleadings of the grounds for relief (Reasons [8]–[16]).
On the narrower issue of the missing certificate of title, the court considered the bankrupt's admissions on cross-examination sufficient to persuade the Land Titles Office to effect a transmission without the original certificate, and the court declined to require a statutory declaration when the evidence already given should be adequate (Reasons [4]–[5], [18]).
Before this decision (and indeed as confirmed in it), the Bankruptcy Act provided that property vests in the trustee upon sequestration (s58). That is the statutory starting point for a trustee seeking to deal with estate property. The judgment does not announce a new statutory principle; rather, it demonstrates the Federal Magistrates Court applying established statutory rules to the practical processes of transferring registered title and securing possession.
After this decision, the procedural takeaways are:
The judgment thus clarifies procedural expectations and the court's willingness to provide practical remedies to trustees while preserving proper procedural boundaries for challenges to trustee conduct.
Reason [3]: "Upon the making of a sequestration order the property of the bankrupt vests forthwith in his registered trustee [(s.58(1)(a)]..."
Reason [5]: "It appears that the certificate of title was handed to Mrs Wallin at some time in 1997 and whilst it was possibly seen in the possession of Mr and Mrs Wallin's solicitor shortly thereafter it has not been seen since."
Reason [15]: "In my view these matters are not appropriate as a cross-claim ... The appropriate course is to bring an application ... accompanied by an affidavit ... In preparing such an application, Mr Wallin will no doubt take into account the wording of s.157 of the Bankruptcy Act."
Reason [19] (Orders): "I order that the respondent vacate the premises ... within 42 days ... In the event that the respondent fails ... a writ of possession issue forthwith."
This decision is directly engaged where:
In such fact patterns, the court's approach in this decision suggests it will:
The judgment itself does not record later treatment by other courts. The decision is a Federal Magistrates Court decision made on 17 June 2002; it records that an earlier appeal to the Full Court by the bankrupt had been dismissed by Gyles J on 8 April 2002 (Reason [2]). To determine how later courts have treated Pascoe v Wallin one would need to search subsequent case law and citations to this decision. The judgment does not assert novel legal principles; it applies statutory provisions (s58, s157) and commonsense procedural controls. That suggests it is more likely to be treated as an application of established law to evident facts rather than as a leading precedent that radically alters doctrine. However, specific subsequent reliance or critique cannot be discerned from the text of the judgment and would require external research.
Grounded in the judgment text, a number of practical and procedural questions remain open or would require further factual or legal development:
Registry practice and sufficiency of evidence: The court accepted that the bankrupt's admissions and affidavit evidence should suffice for the Land Titles Office to permit transmission without the original certificate of title (Reasons [5], [18]). The decision does not set out the precise evidentiary threshold the Land Titles Office requires, and it leaves open the question of what specific documentary or sworn evidence will be accepted by the registrar in different circumstances.
Scope and appropriate form of applications under s157: The court directed the bankrupt to bring a separate application under s157 if he wished to challenge the trustee’s conduct or seek removal (Reason [15]). The judgment does not spell out the standard of proof, the specific grounds that will be sufficient, or the procedural timetable for such an application. Those matters will be governed by statute, rules and subsequent practice.
Joinder boundaries: The court refused to join multiple third parties as "strangers to these proceedings" because the material did not show a relevant connection (Reasons [8]–[13]). The decision does not elaborate a detailed test for joinder in bankruptcy possession proceedings; accordingly, in marginal cases courts will need to weigh the relevance and necessity of joinder against the risk of procedural complication.
Enforcement mechanics and timing: The court ordered a 42-day vacate period followed by a writ of possession if not complied with (Reason [19]). The judgment does not discuss further procedural steps for executing a writ in the bankruptcy context, such as notice requirements, stays, or interaction with other statutory protections, leaving those to standard enforcement practice.
These open questions are procedural and practical. They were not determined substantively in this decision and would require further judicial elaboration or practice notes from the relevant registries.
Reminder: This is a summary and analysis of the reasons for judgment in Pascoe v Graeme Wallin [2002] FMCA 111. It is legal information, not legal advice. I can make mistakes. Before you act on this, rely on it, or use any draft derived from it, get a qualified Australian lawyer to check it.
BANKRUPTCY - Application for vacant possession of property - application for writ of possession upon failure to give vacant possession of property.
Bankruptcy Act 1966 (Cth) ss. 58, 157
(1) The respondent vacate the premises known as 29 Frederick Street Dudley in the State of New South Wales being all that land contained in volume 14046 folio 82 within 42 days of the entry of the orders in these proceedings.
(2) In the event that the respondent fails to give vacant possession of the property described above in accordance with Order (1) above, a writ of possession issue forthwith.
(3) The applicant's costs of these proceedings be paid in priority out of the property of the bankrupt estate of the respondent.
1. This is an application in the bankruptcy of GRAHAM WALLIN by his trustee Mr SCOTT PASCOE. The application was filed on 13 May 2002 and sought eight orders. Those orders related to a property known as 29 Frederick Street Dudley, New South Wales, in respect of which Mr Wallin is alleged to be the registered proprietor.
2. Mr Wallin was made bankrupt pursuant to a sequestration order dated 25 September 2001. He appealed against the making of that order from this court to the Full Court of the Federal Court of Australia. On
8 April 2002 Justice Gyles heard the appeal and dismissed it. In his reasons for judgment, Gyles J sets out some of the history of this lengthy matter.
3. Upon the making of a sequestration order the property of the bankrupt vests forthwith in his registered trustee (s.58(1)(a) Bankruptcy Act 1966 (Cth)). Thus the trustee, Mr Pascoe, is the equitable owner of the property identified by CT volume 14046 folio 82 known as 29 Frederick Street Dudley, New South Wales. The trustee now seeks by way of this application assistance to become registered as the proprietor, an order that the bankrupt vacate the property and a writ of possession, together with consequential orders for costs.
4. The application as originally drafted asked the court to make orders which would have the effect of requiring Mr Wallin either to deliver up the certificate of title to the property or to sign a statutory declaration indicating what had happened to it. It was said that these orders were required because the Land Titles Office of NSW would not register the transmission from the bankrupt to his trustee without sighting the original certificate of title or dealing with that certificate as if it had been lost.
5. When the matter came before me, Mr Wallin was called to be cross-examined on certain affidavits which he had filed. The real purpose of that cross-examination was to obtain admissions from Mr Wallin concerning the whereabouts of the certificate of title. Those were obtained. It appears that the certificate of title was handed to Mrs Wallin at some time in 1997 and whilst it was possibly seen in the possession of Mr and Mrs Wallin's solicitor shortly thereafter it has not been seen since. I understand from counsel who appeared on behalf of the trustee that this evidence given by Mr Wallin if reproduced for the benefit of the Land Titles Office should be sufficient to convince that Office to permit a transmission. It is of course open to the trustee to join the Land Titles Office in these proceedings so that I can make a direct order requiring the office to effect the transmission, but this was not done and may well not be necessary.
6. Mr Wallin was also cross-examined about his current circumstances so that I should have some evidence from which I could make a decision as to whether or not to make an order requiring him to vacate the property and the length of time which he should be given in order to do this. Mr Wallin lives in the property alone. From time to time his son visits him there but does not stay and he has little in the way of possessions. The trustee wishes to sell the property as he believes it is a major (if not the only) asset of Mr Wallin's bankrupt estate.
7. Mr Wallin resists this application and in addition has made his own application to put on a cross-claim and to bring in a number of additional persons into the proceedings. He filed two affidavits on 4 June 2002, two affidavits on 11 June 2002 and an affidavit on 12 June 2002, all of which I have read. I am satisfied that the affidavits do not provide any legal basis upon which I should decline to make orders requiring Mr Wallin to vacate the premises, nor to grant a writ of possession in the event that he does not voluntarily vacate them. I am satisfied from the evidence which I heard from him that Mr Wallin is the registered proprietor of the premises.
8. In regard to the application which Mr Wallin has made to join other parties to the proceedings, I decline to grant it. The persons sought to be joined are various.
9. The first are the estate of the principal of a company known as MJB Building Services Pty Limited and that company who were parties to the original proceedings with Mr Wallin which resulted in orders for costs upon which the bankruptcy proceedings were based. Those proceedings were concluded some time ago after resort to all appeal processes. The parties who Mr Wallin wishes to join are strangers to these proceedings and, so far as I can understand it, have nothing to do with the cross-claim as explained to me by Mr Wallin with which I shall deal later.
10. The second person sought to be joined is Mr Haylen, the applicant's solicitor. The only allegations made which might involve Mr Haylen seem to be those contained in paragraphs 7 and 7.1 of a document entitled `Facts and Pleadings' attached to the Notice of Motion:
"7. The Applicant alleges the Respondents have made misrepresentations, and done wrongfull (sic) acts and/or omissions, to pervert the course of justic (sic), that is not consistant (sic) to the virtue of the Federal Magistrates Court Rules 2001, (Statutory Rules 2001 No 195). And the Applicant alleges the Respondents have breached, Part 9, Rule 9.02(2) Change of Lawyer, -and- Part 9, Rule 9.03, (1), (3) (a) (b) Withdrawal as lawyer.
7.1 The Applicant alleges the Respondents have made misrepresentations, and one wrongfull (sic) acts and/or omissions, to pervert the course of justic (sic), that is not consistant (sic) to the virtue of the Federal Court Rules, (Reprint 5). And the Applicants alleges the Respondents have breached, Order 45, Solicitors, Rule 4, Change of agent."
11. I find these paragraphs difficult to comprehend and I do not believe the interests of justice will be served by the joinder of Mr Haylen to a cross-claim in the present proceedings based upon these allegations.
12. The third person sought to be joined is Mr Greg Gilmour who is a solicitor with Messrs McNeil James, the trustee's former solicitors. For reasons similar to those expressed above, I do not believe it is appropriate to join him in the proceedings.
13. The final person sought to be joined is Mr Pascoe himself. Mr Pascoe is already a party to the proceedings.
14. I asked Mr Wallin to explain to me in a comprehensible manner exactly what his cross-claim was. He responded that it amounted to an application to remove the trustee based upon:
a) The fact that the trustee had not responded to requests by him for information; and
b) That the trustee and his advisers had misled the court.
15. In my view these matters are not appropriate as a cross-claim to an application by a trustee in bankruptcy for the type of orders sought in these proceedings. If Mr Wallin wishes to air these matters the appropriate course is to bring an application which clearly sets out the relief sought, the basis upon which that relief is sought and is accompanied by an affidavit setting out in terms that can be easily understood the facts and circumstances which amount to evidence supporting the allegations made. In preparing such an application, Mr Wallin will no doubt take into account the wording of s.157 of the Bankruptcy Act.
16. As far as the Notice of Motion is concerned I would dismiss it.
17. I have taken into account the representations made by Mr Wallin concerning his personal circumstances. I believe he should be given a reasonable time to vacate the premises and this I have done in the orders which I make.
18. I was pressed by the solicitor for the applicant, on instructions, to make an order in the form of paragraph 4 of the application requiring Mr Wallin to provide a statutory declaration to the trustee. I do not propose to do this. Mr Wallin has explained the position regarding the certificate of title on to the transcript and I trust that this should be sufficient for the Land Titles Office.
(1) I order that the respondent vacate the premises known as
29 Frederick Street Dudley in the State of New South Wales being all that land contained in volume 14046 folio 82 within 42 days of the entry of the orders in these proceedings.
(2) In the event that the respondent fails to give vacant possession of the property described above in accordance with Order (1) above, a writ of possession issue forthwith.
(3) The applicant's costs of these proceedings be paid in priority out of the property of the bankrupt estate of the respondent.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Pascoe
Graeme Wallin [2002] FMCA 111
Orders that the respondent vacate 29 Frederick Street Dudley within 42 days; if he fails to give vacant possession a writ of possession to issue forthwith; applicant's costs to be paid in priority out of the bankrupt estate (Reasons [19]).