National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71

National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71

The authority of the Trustee in bankruptcy to consent to judgment for possession over the property is a matter falling within the exclusive jurisdiction of the Federal Court of Australia or Federal Magistrates Court under Bankruptcy Act 1966 (Cth), s 27(1), and therefore cannot be determined by this Court. Absent a finding in the applicants' favour on that question, there is no demonstrated irregularity in the entry of the consent judgment, nor sufficient cause for it to be set aside.

Parties
Plaintiff/respondent: National Australia Bank Limited; First Defendant/applicant: Kim Francis Hunter; Second Defendant/applicant: Kim Lee Hunter
Jurisdiction
Australia
Judgment Date
18 February 2013
Procedural Posture
Interlocutory Application / Notice of Motion to Set Aside Consent Judgment
Outcome
Defendants' notice of motion dismissed. Consent judgment for possession is not set aside. Directions for any further judgment on costs issues.
Legal Topics
Consent Judgment, Trustee in Bankruptcy Authority, Setting Aside Judgments, Exclusive Jurisdiction in Bankruptcy, Possession of Property, Equitable Interests in Bankruptcy
Bankruptcy Civil Procedure Property Law Consent Judgment Trustee in Bankruptcy Authority Setting Aside Judgments Exclusive Jurisdiction in Bankruptcy Possession of Property +1 more

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Parties

National Australia Bank Limited

Plaintiff/respondent

Kim Francis Hunter

First Defendant/applicant

Kim Lee Hunter

Second Defendant/applicant

Procedural Posture

Interlocutory Application / Notice of Motion to Set Aside Consent Judgment

Legal Issues

  1. 1 Whether the consent judgment was entered irregularly and should be set aside under UCPR rr 36.15 or 36.16
  2. 2 Whether the Trustee in bankruptcy had authority to consent to judgment for possession of bankrupt's property
  3. 3 Whether claim to equitable interest in property divests trustee's title under Bankruptcy Act 1966 (Cth)

Ratio Decidendi

The authority of the Trustee in bankruptcy to consent to judgment for possession over the property is a matter falling within the exclusive jurisdiction of the Federal Court of Australia or Federal Magistrates Court under Bankruptcy Act 1966 (Cth), s 27(1), and therefore cannot be determined by this Court. Absent a finding in the applicants' favour on that question, there is no demonstrated irregularity in the entry of the consent judgment, nor sufficient cause for it to be set aside.

Court Disposition

Defendants' notice of motion dismissed. Consent judgment for possession is not set aside. Directions for any further judgment on costs issues.

Orders

  • The defendant's Notice of Motion dated 20 November 2012 is dismissed.
  • The consent judgment for possession of the whole of the subject Property, entered on 7 March 2012, is not set aside.