Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464

FEDERAL COURT OF AUSTRALIA

Australia and New Zealand Banking Group Limited v State of Queensland [2018] FCA 464 File number: QUD 129 of 2018

Judge: LOGAN J

Date of judgment: 19 March 2018

Catchwords: BANKRUPTCY – disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) for onerous covenants – application for order under s 133(9) vesting property in mortgagee subject to conditions – whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy – historical and doctrinal basis of escheat – consistency of doctrine of escheat with Torrens title land, statutory powers of disclaimer and constitutional context – effect of disclaimer occurring under Commonwealth law – whether land vests in the Crown in right of the Commonwealth or the State – better view may be that land does not escheat upon disclaimer, rather the legal title is held by the Crown on trust for statutory purposes until the Court makes an order vesting it pursuant to s 133(9). REAL PROPERTY – disclaimer of real property for onerous covenants – Torrens title – whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy – historical and doctrinal basis of escheat. MORTGAGES – disclaimer of real property under s 133 of Bankruptcy Act 1966 (Cth) for onerous covenants – position of registered mortgagee – realisation of mortgagee's security to repay debt – whether land escheats to Crown in right of State of Queensland after disclaimer by trustee in bankruptcy – mortgagee's right to apply for order vesting fee simple in the property the subject of the mortgage in it following disclaimer – appropriate terms and conditions of vesting order.