Federal Court of Australia
Federal Court of Australia
AFSH Nominees Pty Ltd v State of Western Australia [2022] FCA 1168 File number: WAD 78 of 2022
Judgment of: COLVIN J
Date of judgment: 30 September 2022
Catchwords: CORPORATIONS - application by mortgagee under s 568F of the Corporations Act 2001 (Cth) for order vesting in its name a disclaimed residential property - where liquidator also purported to disclaim the 'mortgage agreement' between the company and the mortgagee - where liquidator elected to not appear and did not file a submitting appearance - where tenant has filed submitting appearance - whether disclaimer can affect rights other than those held by the company in liquidation - whether mortgagee can enforce mortgage despite the escheatment of the property to the Crown - orders made declaring the disclaimer of the 'mortgage agreement' as being of no lawful effect as against the mortgagee's interest - application allowed
Legislation: Bankruptcy Act 1966 (Cth) s 133 Corporations Act 2001 (Cth) ss 491, 568, 568A, 568B, 568C, 568D, 568F Residential Tenancies Act 1987 (WA) Transfer of Land Act 1893 (WA) s 108
Cases cited: Australia and New Zealand Banking Group Limited v State of Western Australia, in the matter of Raleigh [2022] FCA 639 Bank of Queensland Limited v State of Western Australia [2020] FCA 442 Brooks, in the matter of Tease Hair & Spa Pty Ltd (in liquidation) [2022] FCA 457 Commonwealth Bank of Australia v State of Queensland, in the matter of Hewton [2021] FCA 22 Francis (Trustee), in the matter of Fotios (Bankrupt) v Helios Corporation Pty Ltd [2022] FCA 199 Jones (Liquidator) v Matrix Partners Pty Ltd; in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] FCAFC 40; (2018) 260 FCR 310 National Australia Bank Ltd v State of New South Wales [2009] FCA 1066; (2009) 182 FCR 52 Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 Stacks Managed Investments Limited v State of New South Wales [2016] NSWSC 1349 Westpac Banking Corporation v Western Australia [2021] FCA 1097
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