White v Lynn

[1999] FCA 1612

FEDERAL COURT OF AUSTRALIA

White v Lynn [1999] FCA 1612

IN THE MATTER OF KATHLEEN FAY LYNN, A BANKRUPT;
CLYDE PETER WHITE V THOMAS LYNN AND KATHLEEN FAY LYNN

V7301 of 1998

FINKELSTEIN J
MELBOURNE
24 SEPTEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7301 OF 1998

IN THE MATTER OF KATHLEEN FAY LYNN, A BANKRUPT

BETWEEN:	CLYDE PETER WHITE (as Trustee of the Bankrupt Estate of KATHLEEN FAY LYNN) Applicant
AND:	THOMAS LYNN and KATHLEEN FAY LYNN Respondents
JUDGE:	FINKELSTEIN J
DATE OF ORDER:	24 SEPTEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The stay of the order made on 10 September 1999 that the Official Trustee in Bankruptcy obtain possession of the property be lifted.

2.The applicant’s costs of the application are to be paid by the respondents.

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	VG 7301 OF 1998

IN THE MATTER OF KATHLEEN FAY LYNN, A BANKRUPT

BETWEEN:	CLYDE PETER WHITE (as Trustee of the Bankrupt Estate of KATHLEEN FAY LYNN) Applicant
AND:	THOMAS LYNN and KATHLEEN FAY LYNN Respondents

JUDGE:	FINKELSTEIN J
DATE:	24 September 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Official Trustee in Bankruptcy seeks to lift a stay on the operation of an order for possession on property at 9 Lower Dandenong Road, Mentone, which is presently occupied by Kathleen Fay Lynn, formerly a bankrupt, and her husband Thomas Lynn.

2. The application came about in the following circumstances. On 24 June 1996 a sequestration order was made against the estate of Mrs Lynn upon her own petition. Thereafter her Trustee in Bankruptcy brought proceedings against Mr Lynn to have declared void a transfer to him of Mrs Lynn’s undivided joint interest in the property. The application was made under s 120 of the Bankruptcy Act 1966 (Cth), which at the relevant time provided in subsection (1):

   “A settlement of property, whether made before or after the commencement of this Act, not being:

   (a)a settlement made before and in consideration of marriage, or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration; or

   (b)a settlement made on or for the spouse or children of the settlor of property that has accrued to the settlor after marriage in right of the spouse of the settlor;

   is, if the settlor becomes a bankrupt and the settlement came into operation after, or within two years before, the commencement of the bankruptcy, void as against the trustee in the bankruptcy.”

3. On 28 May 1997, the Trustee obtained his order from Marshall J.  The Trustee also obtained a declaration that he is entitled to be registered as the proprietor of the one-half interest in the land as tenants-in-common with Mr Lynn.  An appeal from those orders to the Full Court was dismissed. 

4. The Trustee then made an application for an order that there be a sale of the…