Australia & New Zealand Banking Group Limited v Baker & Lamont [2000] FCA 1812

FEDERAL COURT OF AUSTRALIA

Australia & New Zealand Banking Group Limited v Baker and Lamont [2000] FCA 1812 BANKRUPTCY – whether bankruptcy notices sustainable upon basis of indemnities independently of guarantees contained in same instrument – whether Official Receiver obliged to issue bankruptcy notices in the name or on behalf of the Official Trustee in Bankruptcy. CONSTITUTIONAL LAW – whether Official Trustee in Bankruptcy validly constituted as a corporation sole by reference to s 51(xvii) of the Constitution – whether State legislation comprising Corporations Law 1989 together with Commonwealth legislation comprising Australian Securities Commission Act 1989 authorises the incorporation of companies by the Australian Securities Commission – alternatively whether inconsistency within s 109 exists between such State legislation and Commonwealth legislation – whether there should be stay of bankruptcy proceedings pending the resolution of the constitutional issues. COSTS – whether solicitors should be personally liable for costs order made against the unsuccessful litigant.

Judiciary Act 1903 (Cth) s 78B. The Commonwealth of Australia Constitution Act 1900 ss 51(xvii), 51(xx) and 109. Bankruptcy Act 1966 (Cth) ss 5AA, ss 15(1), 15(3), 18(1), 18(8), 18 (8AA), 41(1) and 18(1). Australia and New Zealand Banking Group Act 1977 (Vic). Australian Securities Commission Act 1989 (Cth). Corporations Law 1989 (Qld) ss 120, 121 and 123. Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29. The State of Victoria v The Commonwealth (1987) 99 CLR 575. Caboolture Park Shopping Centre Pty Ltd (in Liq) v White Industries (Qld) Pty Limited (No 1) (1973) 45 FCR 224 Deputy Commissioner of Taxation v Levick (1999) 168 ALR 383. Levick v Deputy Commissioner of Taxation (2000) 44 ATR 315. AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED v MARTIN WILLIAM WEBB BAKER and JOHN ROBERT LAMONT CONTI J SYDNEY 12 DECEMBER 2000