McMillan v Bidmonta Pty Ltd, in the matter of the bankrupt estate of David Robert McMillan [2013] FCA 865

McMillan v Bidmonta Pty Ltd, in the matter of the bankrupt estate of David Robert McMillan [2013] FCA 865

The applicant had standing under s 133(9) because she was a co-owner of the Ebenezer property, a co-borrower under Perpetual's secured loan and therefore under a liability not discharged by the Bankruptcy Act, and a person claiming an interest by reason of the binding financial agreement. It was just and equitable to vest the bankrupt's disclaimed one-half interest in her given the binding financial agreement, her sole repayment of the secured loan since 2009, the significant repayments made, her residence at the property with dependent children and her mother, and the State's consent.

Jurisdiction
Australia
Judgment Date
26 August 2013
Procedural Posture
Bankruptcy and Insolvency Application for a Vesting Order Under S 133(9) of the Bankruptcy Act 1966 (cth) in Respect of Disclaimed Property / Ex Tempore Judgment and Orders
Outcome
Application for vesting order granted; State of New South Wales joined by consent.
Legal Topics
['disclaimer of Onerous Property' 'vesting Order' 'bankrupt Estate' 'joint Tenancy Severed by Bankruptcy' 'co Borrower Under Mortgage']
['bankruptcy and Insolvency' 'property Law'] ['disclaimer of Onerous Property' 'vesting Order' 'bankrupt Estate' 'joint Tenancy Severed by Bankruptcy' 'co Borrower Under Mortgage']

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Procedural Posture

Bankruptcy and Insolvency Application for a Vesting Order Under S 133(9) of the Bankruptcy Act 1966 (cth) in Respect of Disclaimed Property / Ex Tempore Judgment and Orders

Legal Issues

  1. 1 ["Whether the applicant had standing under s 133(9) of the Bankruptcy Act 1966 (Cth) to seek a vesting order in respect of the bankrupt's disclaimed one-half interest in the Ebenezer property." 'Whether it was just and equitable to vest the disclaimed property in the applicant.']

Ratio Decidendi

The applicant had standing under s 133(9) because she was a co-owner of the Ebenezer property, a co-borrower under Perpetual's secured loan and therefore under a liability not discharged by the Bankruptcy Act, and a person claiming an interest by reason of the binding financial agreement. It was just and equitable to vest the bankrupt's disclaimed one-half interest in her given the binding financial agreement, her sole repayment of the secured loan since 2009, the significant repayments made, her residence at the property with dependent children and her mother, and the State's consent.

Court Disposition

Application for vesting order granted; State of New South Wales joined by consent.

Orders

  • ['By consent, the State of New South Wales be joined as a party to the proceeding.' 'Pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth), the one-half undivided share as tenant in common of David Robert McMillan, a bankrupt, in the land comprised in folio identifier 11/227211, being the land known as 565 Tizzana...