Australia and New Zealand Banking Group Limited v State of Queensland, in the matter of McFarlane (a Bankrupt) [2017] FCA 696

FEDERAL COURT OF AUSTRALIA

Australia and New Zealand Banking Group Limited v State of Queensland, in the matter of McFarlane (a Bankrupt) [2017] FCA 696 File number: QUD 246 of 2017

Judge: DERRINGTON J

Date of judgment: 20 June 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 PRACTICE AND PROCEDURE – whether all necessary parties are before the court – consideration of whether caveator is required to be served – conclusion that caveat has lapsed PRACTICE AND PROCEDURE – Land Title Practice Manual (Queensland) – Administrative Advices – recording a notification of action on title for the commencement of proceedings

Legislation: Bankruptcy Act 1966 (Cth) ss 58, 133 National Consumer Credit Protection Act 2009 (Cth) Schedule 1 National Credit Code s 88 Land Title Act 1994 (Qld) ss 78, 126 Property Law Act 1974 (Qld) ss 84, 85