Westpac Banking Corporation v State of Queensland [2019] FCA 1433

Westpac Banking Corporation v State of Queensland [2019] FCA 1433

Westpac, as the registered mortgagee, is entitled under s 133(9) of the Bankruptcy Act 1966 (Cth) to have the property vested in it for the purpose of exercising its power of sale, as the property was disclaimed by the trustees, escheated to the Crown, and it is just and equitable to grant the vesting order so the mortgagee can realise its security.

Parties
Applicant: Westpac Banking Corporation; First Respondent: State of Queensland; Second Respondents: Michael John Griffin and Rajendra Kumar Khatri as the trustees of the property of Chad Bryan Lawrence
Jurisdiction
Australia
Judgment Date
26 August 2019
Procedural Posture
Application Under S 133(9) Bankruptcy Act 1966 (cth) for Vesting Order / Final Orders
Outcome
Application granted
Legal Topics
Vesting of Disclaimed Property, Escheat to Crown, Rights of Mortgagee After Bankruptcy, Exercise of Power of Sale
Bankruptcy Law Property Law Mortgage Law Vesting of Disclaimed Property Escheat to Crown Rights of Mortgagee After Bankruptcy Exercise of Power of Sale

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Parties

Westpac Banking Corporation

Applicant

State of Queensland

First Respondent

Michael John Griffin and Rajendra Kumar Khatri as the trustees of the property of Chad Bryan Lawrence

Second Respondents

Procedural Posture

Application Under S 133(9) Bankruptcy Act 1966 (cth) for Vesting Order / Final Orders

Legal Issues

  1. 1 Whether the applicant mortgagee is entitled to a vesting order under s 133(9) of the Bankruptcy Act 1966 (Cth) in respect of disclaimed property escheated to the Crown
  2. 2 Whether it is just and equitable to vest the property in the applicant for the purpose of sale

Ratio Decidendi

Westpac, as the registered mortgagee, is entitled under s 133(9) of the Bankruptcy Act 1966 (Cth) to have the property vested in it for the purpose of exercising its power of sale, as the property was disclaimed by the trustees, escheated to the Crown, and it is just and equitable to grant the vesting order so the mortgagee can realise its security.

Court Disposition

Application granted

Orders

  • Estate in fee simple in the property vested in the applicant pursuant to s 133(9) Bankruptcy Act 1966 (Cth) for purposes of exercising its powers as mortgagee
  • Applicant may, but is not bound to, deal with the property as if exercising power as mortgagee in possession, including right to sell