Lynn v White

[1999] FCA 1649

FEDERAL COURT OF AUSTRALIA

Lynn v White [1999] FCA 1649

THOMAS LYNN and KATHLEEN LYNN
v CLYDE PETER WHITE and OFFICIAL TRUSTEE IN BANKRUPTCY
V 644 of 1999

RYAN J
MELBOURNE
19 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 644 OF 1999

BETWEEN:

THOMAS LYNN
First Applicant

KATHLEEN LYNN
Second Applicant

AND:

CLYDE PETER WHITE
First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

19 NOVEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The execution of the warrant for possession be stayed until 28 November 1999;

2.        The application be otherwise dismissed. 

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 644 OF 1999

BETWEEN:

THOMAS LYNN
First Applicant

KATHLEEN LYNN
Second Applicant

AND:

CLYDE PETER WHITE
First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY
Second Respondent

JUDGE:	RYAN J
DATE:	19 NOVEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This application has been brought about by a very sorry set of circumstances which have been recounted by Finkelstein J in reasons for judgment published on 24 September 1999.  At the conclusion of those reasons his Honour noted:

   "When Heerey J made his orders under section 223 of the Property Law Act he expressed regret at having to do so.  Mrs Lynn and her husband are elderly people.  They are not in good health.  They are having their family home sold.

   Nevertheless, a sequestration order having been made against Mrs Lynn on her own petition and the transfer of the interest in the house having been set aside, a sale order was inevitable.  When I made my orders on 2 June 1999 I also said that the case was a very unfortunate one.  It was for that reason that I made orders, the practical effect of which was to grant a further stay on the sale for approximately six months.  However the present circumstances cannot be allowed to continue.

   Whatever lenience has been shown to Mrs Lynn and her husband, it is now apparent that it is to no useful effect.  I had anticipated that they would seek to obtain alternative accommodation in the knowledge that it was inevitable that their home would be sold.  It is now clear that Mrs Lynn and her husband have no intention whatsoever of leaving the home voluntarily.  They seem not to mind whether, in undertaking that course, they breach orders made by the Court, breach undertakings that have been given and act in defiance of the restraining orders that were made.

   In those circumstances, notwithstanding that both Heerey J and myself have attempted to give Mrs Lynn and her husband a considerable period of time within which to order their affairs, it had now reached the stage where the official trustee must take possession of the property.  This is the only way in which he will be able to carry out his obligation to effect a…