Lynn v White [1999] FCA 1649 (19 November 1999)

Last Updated: 26 November 1999

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 sale for the benefit of the creditors of Mrs Lynn's estate.

Accordingly, I propose that the stay I granted on 10 September 1999 of the order that the official trustee recover possession of the property be lifted."

2 The present motion is for an injunction restraining recovery by the Official Trustee of possession of Mr and Mrs Lynn's home and has been prompted by the issue of a warrant for possession which, it is understood, can be executed on or after today.

3 The Official Trustee is the trustee for sale pursuant to the order of Heerey J and has been represented in court today by Mr Munster. I have taken the step of adding the Official Trustee as a respondent, so that any order which might be made on the present application will be binding on that added respondent. I have been told from the bar table by representatives of both the Official Trustee and the first respondent, who is the trustee in bankruptcy of Mrs Lynn, that Mr and Mrs Lynn have been notified to vacate the premises by 28 November 1999.

4 In those circumstances, the need for an injunction to gain for the applicants a space in which to remove their furniture and personal effects and obtain alternative accommodation is not as urgent as it was represented to be when this matter was listed for an expedited hearing at 9.00 am today.

5 Moreover, it is clear from the submissions made on behalf of Mr and Mrs Lynn by their son that what is really sought by the applicants is that they be allowed to remain in the home until the death of Mr Lynn, who, I have been told, is 81 years of age and suffering from dementia. That reinforces the finding by Finkelstein J that they have "no intention whatsoever of leaving the home voluntarily". In the circumstances, and against the background of the history of the matter, there is now no power which this Court can exercise to give effect to those real wishes of Mr and Mrs Lynn.

6 A more effective avenue of assistance for them must now lie through social security agencies or guardianship authorities. Accordingly, I shall order only that the execution of the warrant for possession be stayed until 28 November 1999 and that the application be otherwise dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RYAN J.

Associate:

Dated: 19 November 1999

Appearing for the Applicants:	Mr A Lynn
Counsel for the First Respondent:	Mr S Funnell
Solicitor for the First Respondent:	Velos and Davis
Counsel for the Second Respondent:	Mr P Munster
Solicitor for the Second Respondent:	Lewis Hutchinson
Date of Hearing:	19 November 1999
Date of Judgment:	19 November 1999