Westpac Banking Corporation v State of Western Australia, in the matter of Conco Construction Services Pty Ltd [2022] FCA 1213

Westpac Banking Corporation v State of Western Australia, in the matter of Conco Construction Services Pty Ltd [2022] FCA 1213

The Canning Vale property had been disclaimed under s 568; Westpac, as registered mortgagee, claimed an interest and applied under s 568F(2)(a); no other person needed to be heard; and without a vesting order Westpac would lose the benefit of its security despite existing defaults and outstanding debt. It was therefore appropriate under s 568F(1)(b) to vest the property in Westpac on terms enabling it to realise its security, with any residue payable to the liquidator or, if no liquidator remained appointed, into Court, and the State's proposed entitlement to surplus funds was rejected.

Jurisdiction
Australia
Judgment Date
12 October 2022
Procedural Posture
Application by Mortgagee for Vesting Order and Related Orders Under S 568 F of the Corporations Act 2001 (cth) in Respect of Disclaimed Property / Determined on the Papers
Outcome
Application granted; vesting and related orders made; no order as to costs.
Legal Topics
['vesting of Disclaimed Property' 'liquidator Disclaimer' 'mortgagee Powers' 'mortgagee in Possession' 'surplus Proceeds of Sale' 'escheat to the Crown']
['corporations' 'corporate Insolvency' 'property' 'mortgages'] ['vesting of Disclaimed Property' 'liquidator Disclaimer' 'mortgagee Powers' 'mortgagee in Possession' 'surplus Proceeds of Sale' 'escheat to the Crown']

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Procedural Posture

Application by Mortgagee for Vesting Order and Related Orders Under S 568 F of the Corporations Act 2001 (cth) in Respect of Disclaimed Property / Determined on the Papers

Legal Issues

  1. 1 ["Whether the Court's discretion under s 568F of the Corporations Act 2001 (Cth) was enlivened to vest the disclaimed Canning Vale property in Westpac." 'Whether it was appropriate to vest the property in Westpac so it could exercise mortgagee powers as if mortgagee in possession.' 'Whether any failure to give notice of disclaimer to caveators or the Registrar of Titles prevented the Court from making the vesting order.' 'How any surplus proceeds of sale should be distributed.']

Ratio Decidendi

The Canning Vale property had been disclaimed under s 568; Westpac, as registered mortgagee, claimed an interest and applied under s 568F(2)(a); no other person needed to be heard; and without a vesting order Westpac would lose the benefit of its security despite existing defaults and outstanding debt. It was therefore appropriate under s 568F(1)(b) to vest the property in Westpac on terms enabling it to realise its security, with any residue payable to the liquidator or, if no liquidator remained appointed, into Court, and the State's proposed entitlement to surplus funds was rejected.

Court Disposition

Application granted; vesting and related orders made; no order as to costs.

Orders

  • ['Pursuant to s 568F of the Corporations Act 2001 (Cth), the estate in fee simple in Unit 12, 11 Mordaunt Circuit, Canning Vale WA 6155, described as Lot 7 on Survey-Strata Plan 72987 and Certificate of Title Volume 2922 Folio 813, vested in Westpac for the purposes of exercising its powers as mortgagee under the...