Australia and New Zealand Banking Group Limited v State of Queensland [2020] FCA 1597

Federal Court of Australia

Australia and New Zealand Banking Group Limited v State of Queensland [2020] FCA 1597 File number: QUD 187 of 2020

Judgment of: LOGAN J

Date of judgment: 30 July 2020

Catchwords: BANKRUPTCY – Bankruptcy Act 1966 (Cth) s 133 – application by mortgagee for vesting in bankrupts' property in mortgagee for the purposes of sale – effect of disclaimer by trustee in bankruptcy

Legislation: Bankruptcy Act 1966 (Cth) s 133

Cases cited: Commonwealth Bank of Australia v State of Queensland, in the matter of Ginn [2016] FCA 1337

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 9

Date of hearing: 30 July 2020

Solicitor for the Applicant: Gadens

Solicitor for the Respondent: Department of Natural Resources, Mines and Energy, In-House Legal

ORDERS QUD 187 of 2020

BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522 Applicant

AND: STATE OF QUEENSLAND Respondent

order made by: LOGAN J DATE OF ORDER: 30 JULY 2020

THE COURT ORDERS THAT:

1. Pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth) the estate in fee simple in the property described as Lot 3 on Registered Plan 605605, Title Reference 30433208 being the land situated at 127 Rodboro Street, Berserker in the State of Queensland (Property), vest in the Applicant for the purpose of the Applicant exercising its powers as mortgagee under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and registered mortgage number 717310189 (Mortgage). 2. On the vesting of the Property in the Applicant pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth) the Applicant: (a) may, but it is not bound to, deal with the Property as if it were exercising its powers as mortgagee in possession under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and the Mortgage, including exercising the right to sell the estate in fee simple in the Property in exercise of its power of sale and all its other rights under the Mortgage; (b) for the purpose of selling the estate in fee simple of the Property in exercise of its power of sale, is not required to serve: (i) a notice of default or demand whether under section 88 of the National Credit Code, being Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) or otherwise; and (ii) a notice pursuant to section 84 of the Property Law Act 1974 (Qld); (c) is entitled to calculate the entirety of the debt secured and owing pursuant to the Mortgage as including all monies that would have been secured by the Mortgage had the trustee of the bankrupt estates of Trevor John Ritchie (Mr Ritchie) and Jennifer Louise Ritchie (Ms Ritchie) not disclaimed the Property and to deduct and retain for its own absolute use and property such amount from any proceeds of sale of the Property as if it were money secured by the Mortgage (including costs of this application and all costs properly incurred in selling, and incidental to the sale of, the Property); (d) shall apply the proceeds of sale from the Property as follows: (i) first, in payment of any statutory charges affecting the property, which the relevant statute provides are payable in priority to the Applicant; (ii) secondly, in payment of all costs, charges and expenses properly incurred by the Applicant as incidental to the sale, or any attempted sale, or otherwise; (iii) thirdly, in discharge of the debt owed to the Applicant by Mr Ritchie and Ms Ritchie as secured by the Mortgage; and (iv) fourthly, in payment of any subsequent mortgages (if any); (e) must, after sale of the Property, provide an account of its payments and receipts to: (i) Morgan Gerard James Lane of Worrells as the Trustee of the Bankrupt Estates of Mr Ritchie and Ms Ritchie; (ii) Mr Ritchie and Ms Ritchie; (iii) the Registrar of the Court; and (iv) the Respondent; and (f) must pay into Court the surplus, if any, arising from the sale of the Property. 3. There be no order as to costs against the Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.