Re Ly Ty Tran Cao ex parte Dixon, T W F v Ly Ty Tran Cao & Ors Re Van Lam Cao Ex parte Dixon, T W F v Ly Ty Tran Cao & Ors [1995] FCA 1167

Re Ly Ty Tran Cao ex parte Dixon, T W F v Ly Ty Tran Cao & Ors Re Van Lam Cao Ex parte Dixon, T W F v Ly Ty Tran Cao & Ors [1995] FCA 1167

The lien (if any) was not destroyed by the expiration of the stay or the trustee obtaining physical possession, as the fourth and fifth respondents only parted with possession for a limited, specific purpose and continued to assert their lien. In the circumstances, a further stay should be granted to avoid the need for further litigation, considering the trustee's duty to act impartially and to preserve the status quo pending appeal.

Parties
Applicant: Thomas William Frederick Dixon; First Respondent: Ly Ty Tran Cao; Second Respondent: Thanh Phuong Cao; Third Respondent: Thanh Phu Cao; Fourth Respondent: Gregory Eugene Smith; Fifth Respondent: Andrews Michael Pasternacki
Jurisdiction
Australia
Judgment Date
12 December 1995
Procedural Posture
Bankruptcy Proceeding / Application for Stay Pending Appeal Decision
Outcome
A further stay of the order delivering up the Certificate of Title was granted pending determination of the appeal.
Legal Topics
Solicitor's Lien, Stay of Orders, Certificates of Title, Trustee in Bankruptcy, Extension of Time
Bankruptcy Property Law Practice and Procedure Solicitor's Lien Stay of Orders Certificates of Title Trustee in Bankruptcy Extension of Time

Case Brief

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Parties

Thomas William Frederick Dixon

Applicant

Ly Ty Tran Cao

First Respondent

Thanh Phuong Cao

Second Respondent

Thanh Phu Cao

Third Respondent

Gregory Eugene Smith

Fourth Respondent

Andrews Michael Pasternacki

Fifth Respondent

Procedural Posture

Bankruptcy Proceeding / Application for Stay Pending Appeal Decision

Legal Issues

  1. 1 Whether solicitor's lien over a Certificate of Title was destroyed when possession was obtained by the trustee in bankruptcy pursuant to a court order
  2. 2 Whether a further stay of an order can be granted after the initial stay expired

Ratio Decidendi

The lien (if any) was not destroyed by the expiration of the stay or the trustee obtaining physical possession, as the fourth and fifth respondents only parted with possession for a limited, specific purpose and continued to assert their lien. In the circumstances, a further stay should be granted to avoid the need for further litigation, considering the trustee's duty to act impartially and to preserve the status quo pending appeal.

Court Disposition

A further stay of the order delivering up the Certificate of Title was granted pending determination of the appeal.

Orders

  • That Order 4 made 28 July 1995 be stayed pending the determination of the appeal from the judgment of Beazley J dated 28 July 1995.
  • That the trustee pay the fourth and fifth respondents costs of the hearing of paragraph 3 of the notice of motion filed 25 August 1995.