Pattison v McKinnon [2008] FCA 1624

Pattison v McKinnon [2008] FCA 1624

Because the properties vested in the applicant as trustee in bankruptcy and he was their registered proprietor, and because the respondents identified no arguable right to remain in possession or conduct by the applicant affecting his entitlement, the applicant was entitled to orders requiring vacant possession and warrants of possession. The timing of the orders was fixed by balancing the applicant's sale contract risks against the respondents' interests in harvesting the Murtoa crop and relocating from the Bellellen residence.

Jurisdiction
Australia
Judgment Date
31 October 2008
Procedural Posture
Bankruptcy Trustee Application for Vacant Possession and Warrants of Possession Over Vested Properties / Reasons for Judgment and Orders After Hearing
Outcome
Application granted; respondents ordered to vacate both properties, warrants of possession to issue and lie in the Registry pending affidavit of non-compliance, and applicant's costs to be paid from the bankrupt estates with priority.
Legal Topics
['vesting of Bankrupt Property in Trustee' 'vacant Possession' 'warrant of Possession' "trustee's Powers" 'costs From Bankrupt Estates']
['bankruptcy' 'property' 'civil Procedure'] ['vesting of Bankrupt Property in Trustee' 'vacant Possession' 'warrant of Possession' "trustee's Powers" 'costs From Bankrupt Estates']

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Procedural Posture

Bankruptcy Trustee Application for Vacant Possession and Warrants of Possession Over Vested Properties / Reasons for Judgment and Orders After Hearing

Legal Issues

  1. 1 ['Whether the Federal Court had jurisdiction and power to order the respondents to vacate properties vested in the applicant as trustee in bankruptcy.' "Whether the respondents had any arguable right to remain in possession against the applicant's demand for vacant possession." 'What period should be allowed before vacant possession was required for the Murtoa and Bellellen properties.' 'Whether a warrant of possession rather than a writ of possession was the appropriate instrument.']

Ratio Decidendi

Because the properties vested in the applicant as trustee in bankruptcy and he was their registered proprietor, and because the respondents identified no arguable right to remain in possession or conduct by the applicant affecting his entitlement, the applicant was entitled to orders requiring vacant possession and warrants of possession. The timing of the orders was fixed by balancing the applicant's sale contract risks against the respondents' interests in harvesting the Murtoa crop and relocating from the Bellellen residence.

Court Disposition

Application granted; respondents ordered to vacate both properties, warrants of possession to issue and lie in the Registry pending affidavit of non-compliance, and applicant's costs to be paid from the bankrupt estates with priority.

Orders

  • ['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.' 'A warrant of possession issue in respect of the Murtoa property, such warrant to lie in the Registry until the filing by the...