Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
ING Bank (Australia) Limited v State of Queensland, in the matter of Watson [2017] FCA 411 File number: QUD 190 of 2017
Judge: DERRINGTON J
Date of judgment: 20 April 2017
Catchwords: BANKRUPTCY – disclaimer of real property by trustees in bankruptcy pursuant to s 133(1) of the Bankruptcy Act 1966 (Cth) – mortgagee Bank making an application under s 133(9) to have property vested in it to enable it to recover its debt – consideration of the ability of a trustee in bankruptcy to disclaim legal title to real property which is not vested in it – consideration of the effect of escheat to the Crown on the continuing enforceability of a pre-existing mortgage – consideration of whether the effect of the escheat was to destroy the fee simple interest such that the mortgage no longer attached to any relevant interest – consideration of the manner in which the fee simple becomes vested in the Crown separately rather than absorbed into its superior interest.
Legislation: Bankruptcy Act 1966 (Cth) ss 58(2), 133(1), 133(1AA), 133(2), 133(3), 133(9) Land Title Act 1994 (Qld) ss 63, 115 Property Law Act 1974 (Qld) ss 84, 86
Cases cited: Australia and New Zealand Banking Group Limited v State of Queensland [2016] FCA 1221 Byrnes v Kendle (2011) 243 CLR 253 Commonwealth Bank of Australia v State of Queensland; In the matter of Ginn [2016] FCA 1337 Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652 National Australia Bank Ltd v State of New South Wales (2009) 260 ALR 115 National Australia Bank Limited v State of New South Wales [2014] FCA 298 National Australia Bank Ltd v Victoria (2010) 118 ALD 527 Purefoy v Rogers (1671) 2 Wms Saund 380; 85 ER 1181 Re Tulloch Ltd (1977) 3 ACLR 808 Rams Mortgage Corporation Ltd v Skipworth (No.2) (2007) 239 ALR 799 Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 Stacks Managed Investments Ltd v New South Wales [2016] NSWSC 1349 Westpac Banking Corporation v State of Queensland [2016] FCA 269 Re Woo [2003] FCA 862
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