Australia and New Zealand Banking Group Limited v State of Western Australia, in the matter of Raleigh [2022] FCA 639

Australia and New Zealand Banking Group Limited v State of Western Australia, in the matter of Raleigh [2022] FCA 639

The conditions for a vesting order under s 133(9) are satisfied: the properties have been disclaimed, the Bank as mortgagee has an interest, and it is just and equitable for the properties to vest in the Bank so that it can exercise its rights. The distribution of any surplus should prioritize payment to the Official Trustee in Bankruptcy (or replacement), and if no trustee is appointed, be paid into court. Dispensation of certain statutory notice procedures to facilitate sale by the mortgagee is appropriate in these circumstances.

Parties
Applicant: Australia and New Zealand Banking Group Limited; First Respondent: State of Western Australia; Second Respondent: State of Queensland; Registered Proprietor (bankrupt): Michael Christopher Raleigh; Registered Proprietor (bankrupt): Bryan James Gardam
Jurisdiction
Australia
Judgment Date
31 May 2022
Procedural Posture
Application (bankruptcy) / Final Orders and Reasons for Judgment
Outcome
Vesting orders granted as sought by the applicant. Orders made for the sale of the properties and the allocation of proceeds as specified.
Legal Topics
Vesting Orders, Mortgagee Rights, Disclaimer of Property, Distribution of Surplus Proceeds, Effect of Bankruptcy on Real Property, Court Procedure for Sale of Disclaimed Property
Bankruptcy Property Law Insolvency Vesting Orders Mortgagee Rights Disclaimer of Property Distribution of Surplus Proceeds Effect of Bankruptcy on Real Property +1 more

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Parties

Australia and New Zealand Banking Group Limited

Applicant

State of Western Australia

First Respondent

State of Queensland

Second Respondent

Michael Christopher Raleigh

Registered Proprietor (bankrupt)

Bryan James Gardam

Registered Proprietor (bankrupt)

Procedural Posture

Application (bankruptcy) / Final Orders and Reasons for Judgment

Legal Issues

  1. 1 Whether the court should vest the fee simple estates of the disclaimed properties in the mortgagee under s 133(9) of the Bankruptcy Act 1966 (Cth)
  2. 2 How any surplus proceeds of sale should be distributed following vesting and sale by the mortgagee
  3. 3 Whether notice and procedural requirements for the exercise of sale powers by the mortgagee can be dispensed with in these circumstances

Ratio Decidendi

The conditions for a vesting order under s 133(9) are satisfied: the properties have been disclaimed, the Bank as mortgagee has an interest, and it is just and equitable for the properties to vest in the Bank so that it can exercise its rights. The distribution of any surplus should prioritize payment to the Official Trustee in Bankruptcy (or replacement), and if no trustee is appointed, be paid into court. Dispensation of certain statutory notice procedures to facilitate sale by the mortgagee is appropriate in these circumstances.

Court Disposition

Vesting orders granted as sought by the applicant. Orders made for the sale of the properties and the allocation of proceeds as specified.

Orders

  • The applicant is vested with the fee simple of the specified properties under s 133(9) of the Bankruptcy Act 1966 (Cth) for the purposes of exercising its powers as mortgagee.
  • Parties to take all steps necessary to give effect to the vesting, including executing documents with relevant title registries.