AMP Bank Limited v State of New South Wales [2014] FCA 1437

FEDERAL COURT OF AUSTRALIA

AMP Bank Limited v State of New South Wales [2014] FCA 1437 Citation: AMP Bank Limited v State of New South Wales [2014] FCA 1437

Parties: AMP BANK LIMITED (ACN 081 596 009) v STATE OF NEW SOUTH WALES

File number: NSD 1243 of 2014

Judge: RARES J

Date of judgment: 17 December 2014

Legislation: Bankruptcy Act 1966 (Cth) s 133(1), (9) National Consumer Credit Protection Act 2009 (Cth) sch 1 Real Property Act 1900 (NSW)

Cases cited: National Australia Bank Limited v New South Wales (2009) 182 FCR 52 applied Westpac Banking Corporation v State of New South Wales [2014] FCA 1368 applied

Date of hearing: 17 December 2014

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Applicant: Mr B Koch

Solicitor for the Applicant: HWL Ebsworth

The Respondent: Filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1243 of 2014

BETWEEN: AMP BANK LIMITED (ACN 081 596 009)

Applicant

AND: STATE OF NEW SOUTH WALES

Respondent

JUDGE: RARES J DATE OF ORDER: 17 DECEMBER 2014 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The estate in fee simple in the land in folio identifier 6/223007 the subject of the disclaimer of onerous property executed on 3 June 2014, by or on behalf of Chris Chamberlain (the trustee) as trustee of the bankrupt estate of Evan Paul Muirhead (the bankrupt) vest pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth) in the applicant, AMP Bank Limited, subject to the following conditions: (a) the applicant hold and deal with the estate as registered proprietor of the estate in fee simple; (b) for the purpose of any dealings with the land the applicant may, (but is not bound) to act as if it were exercising its powers as mortgagee in possession, with the right to sell the estate in fee simple of the land in exercise of its power of sale and all its other rights under registered mortgage AE765143; (c) the applicant be entitled to calculate the amount secured by registered mortgage AE765143 on and after 3 June 2014 as including all moneys that would have been secured by that mortgage had the disclaimer not occurred and to deduct and retain for its own absolute use and property such amount from any proceeds of sale of the estate in fee simple as if it were money secured by the mortgage; (d) the applicant after any sale of the estate in fee simple in the land provide an account of its payments and receipts to: (i) the trustee; (ii) the bankrupt; (iii) the respondent, the State of New South Wales; (iv) the Registrar of the Court; and pay to the trustee any surplus in accordance with s 58(3) of the Real Property Act 1900 (NSW) as if it had exercised a power of sale in accordance with registered mortgage AE765143. 2. The respondent have liberty to apply to the Court on or before 24 December 2014 to vary order 1(d) in respect of the payment of any surplus. 3. The applicant serve these orders on the respondent on or before 18 December 2014. 4. No order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.