FEDERAL COURT OF AUSTRALIA
Pattison v McKinnon [2008] FCA 1624
PAUL PATTISON v DONALD NEIL MCKINNON and JEANETTE BEVERLEY DAWN MCKINNON
VID 685 of 2008
JESSUP J
31 OCTOBER 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 685 of 2008
BETWEEN: PAUL PATTISON
ApplicantAND: DONALD NEIL MCKINNON
First RespondentJEANETTE BEVERLEY DAWN MCKINNON
Second RespondentJUDGE:
JESSUP J
DATE OF ORDER:
31 OCTOBER 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondents vacate their property situated at Murtoa in the State of Victoria described in Certificate of Title Volume 08756 Folio 178 within 30 days of the date of this order.
2.A warrant of possession issue in respect of the property referred to in Order 1 above, such warrant to lie in the Registry until the filing by the applicant, not before 1 December 2008, of an affidavit stating that the respondents have not given vacant possession of that property.
3.The respondents vacate their property situated at Bellellen in the State of Victoria described in Certificate of Title Volume 07677 Folio 014 on or before 4 January 2009.
4.A warrant of possession issue in respect of the property referred to in Order 3 above, such warrant to lie in the Registry until the filing by the applicant, not before 5 January 2009, of an affidavit stating that the respondents have not given vacant possession of that property.
5.The applicant’s costs of this proceeding be paid out of the bankrupt estates of the respondents, with priority.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 685 of 2008
BETWEEN: PAUL PATTISON
ApplicantAND: DONALD NEIL MCKINNON
First RespondentJEANETTE BEVERLEY DAWN MCKINNON
Second Respondent
JUDGE:
JESSUP J
DATE:
31 OCTOBER 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
The applicant, Paul Pattison, is the trustee of the bankrupt estates of the respondents, Donald Neil McKinnon and Jeanette Beverley Dawn McKinnon. The application concerns two properties which were owned jointly by the respondents until their bankruptcy. Upon that event, the properties vested in the applicant pursuant to s 58 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). The respondents have, however, refused to vacate the properties. By application filed on 29 August 2008, the applicant sought orders that the respondents vacate the properties, in default of which that writs of possession should issue.
I am satisfied that the court has both the jurisdiction and the power to make the orders sought by the applicant: see ss 30 and 77(1)(e) and (g) of the Bankruptcy Act. In this respect, I acknowledge the following judgments of the Federal Magistrates Court: Cook v Tagamilitsky [2001] FMCA 117; Official Receiver v Tregaskis [2006] FMCA 1915; Pattison v Wates [2007] FMCA 1068.
The first property with which I am concerned is a farming property situated…
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- AGLC
- Pattison v McKinnon [2008] FCA 1624
- Case
- [2008] FCA 1624
- Decision Date
CaseChat Overview and Summary
The legal issues central to the case included whether the respondents had to vacate the properties within the specified time frames, and if the costs of the proceedings were to be paid from the bankrupt estates of the respondents. The court was required to interpret the terms of the orders made and the implications of the respondents' bankruptcy on the enforcement of the court’s orders.
Gilmour J found that the respondents were indeed required to vacate the properties as per the court’s orders, with specific timelines for vacating each property and the subsequent issuance of warrants of possession. The judge held that the terms of the orders were clear and that the respondents’ bankruptcy did not affect the court’s authority to enforce the orders. Consequently, the judge ruled that the applicant’s costs should be paid from the bankrupt estates of the respondents, given their priority status. The court’s decision was grounded in the principle that the applicant was entitled to the enforcement of the court’s orders, and the respondents' financial status did not absolve them of their legal obligations.
Orders
Orders of the court
1. The respondents vacate their property situated at Murtoa in the State of Victoria described in Certificate of Title Volume 08756 Folio 178 within 30 days of the date of this order.
2. A warrant of possession issue in respect of the property referred to in Order 1 above, such warrant to lie in the Registry until the filing by the applicant, not before 1 December 2008, of an affidavit stating that the respondents have not given vacant possession of that property.
3. The respondents vacate their property situated at Bellellen in the State of Victoria described in Certificate of Title Volume 07677 Folio 014 on or before 4 January 2009.
4. A warrant of possession issue in respect of the property referred to in Order 3 above, such warrant to lie in the Registry until the filing by the applicant, not before 5 January 2009, of an affidavit stating that the respondents have not given vacant possession of that property.
5. The applicant’s costs of this proceeding be paid out of the bankrupt estates of the respondents, with priority.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: JESSUP J
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