Morris Finance Ltd v Brown [2017] FCAFC 97

FEDERAL COURT OF AUSTRALIA

Morris Finance Ltd v Brown [2017] FCAFC 97 Appeal from: Morris Finance Limited v Free, Trustee of the Property of Neil Warren Brown, a Bankrupt [2016] NSWSC 516

File number: VID 1485 of 2016

Judges: BEACH, MARKOVIC AND MOSHINSKY JJ

Date of judgment: 19 June 2017

Catchwords: BANKRUPTCY – application for leave to appeal from decision of the Supreme Court of New South Wales – equitable charge over real property – proceedings for orders for possession and sale – whether applicant required leave under s 58(3)(b) of the Bankruptcy Act 1966 (Cth) to commence such proceedings – consideration of interaction between ss 58(3)(b) and 58(5) of the Bankruptcy Act – whether equitable chargee a "secured creditor" under s 58(5) of the Bankruptcy Act – meaning of "realize or otherwise deal with" in s 58(5) of the Bankruptcy Act in its application to an equitable charge – application for leave to appeal granted – appeal allowed

Legislation: Bankruptcy Act 1924 (Cth) s 60 Bankruptcy Act 1966 (Cth) ss 5, 58(3)(b), 58(5), 90 Federal Court of Australia Act 1976 (Cth) s 24 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 Bankruptcy Act 1898 (NSW) s 10 Insolvency Act 1874 (Qld) s 75 Insolvency Act 1890 (Vic) s 59 The Bankruptcy Act 1870 (Tas) s 11 The Bankruptcy Act 1892 (WA) s 9 The Insolvent Act 1886 (SA) ss 126, 220 An Act to amend and consolidate the Laws relating to Bankrupts 1849 (Imp) (12 & 13 Vict, c 106) ss 141, 142, 184 An Act to amend the Laws relating to Bankrupts 1825 (Imp) (6 Geo IV, c 16) s 108 An Act to establish a Court in Bankruptcy 1831 (Imp) (1 & 2 Will 4, c 56) ss 25, 26 Bankruptcy Act 1869 (UK) ss 12, 13, 72 Bankruptcy Act 1883 (UK) ss 9, 168