Westpac Banking Corporation v State of Queensland [2016] FCA 269

FEDERAL COURT OF AUSTRALIA

Westpac Banking Corporation v State of Queensland [2016] FCA 269 File number: QUD 126 of 2016

Judge: EDELMAN J

Date of judgment: 24 March 2016

Catchwords: REAL PROPERTY – default in payment by registered proprietor upon loan secured by mortgage over property – bankruptcy of registered proprietor – disclaimer of title to property by trustee in bankruptcy of registered proprietor – application by lender for orders vesting title to the property in it for the purposes of sale – claim by current occupant of the property to a subsisting equitable interest arising from a resulting or constructive trust BANKRUPTCY – effect of disclaimer of property by trustee in bankruptcy when conveyance of legal title had not been obtained – operation of discretion to vest title under s 133(9) of the Bankruptcy Act 1966 (Cth) – manner of exercise of that power in circumstances of competing claims by mortgagee and person with rights in equity MORTGAGES – effect upon mortgage of disclaimer of title by trustee in bankruptcy – effect on mortgage of escheat of fee simple to the Crown in right of the State

Legislation: An Act for the better relief of the creditors against such as shall become bankrupts (1604) 1 Jac 1 c 15 Bankruptcy Act 1883 (46 & 47 Vict) c 52 Bankruptcy Act 1924 (Cth) Bankruptcy Act 1966 (Cth) ss 58(1)(a), 58(2), 116(2), 116(2)(a), 133, 133(9) Escheat (Procedure) Act 1887 (50 & 51 Vict c 53) Land Title Act 1994 (Qld) National Consumer Credit Protection Act 2009 (Cth) Sch 1; s 88 Property Law Act 1974 (Qld) s 84 Property Law Act 1974 (Qld) s 85(2) Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 317 Residential Tenancies and Rooming Accommodation Act 2008 (Qld) s 317