National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Limited v Hunter & Anor [2013] NSWSC 71 Hearing dates: 11 February 2013 Decision date: 18 February 2013 Jurisdiction: Common Law Before: Slattery J Decision: Defendants' notice of motion dated 20 November 2012 is dismissed. The consent judgment for possession of the whole of the subject Property, which was entered on 7 March 2012 is not set aside. Directions made for any further judgment on issues of costs. Catchwords: PROCEDURE - Judgments and orders - consent judgment for possession of Real Property Act land signed on 7 March 2012 - First Defendant's Trustee in Bankruptcy executes consent judgment - First and Second Defendant are husband and wife - First Defendant executes transfer of property to Second Defendant before Consent Judgment - but transfer not registered - First and Second Defendants seek to set aside judgment under UCPR, rr 36.15 and 36.16 - whether judgment entered irregularly after service of the Statement of Claim only on the trustee in bankruptcy - whether the form of judgment for possession was irregular, such that it should in the Court's discretion be set aside - HELD - no requirement to serve the First Defendant with legal process in respect of proceedings commenced after his bankruptcy - no irregularity in the form of the judgment for possession is shown - BANKRUPTCY - bankruptcy courts - jurisdiction and powers of Court - first defendant bankrupt and Trustee appointed to his estate - whether the First and Second Defendant's motion to set aside the Consent Judgment requires the Court to determine the Trustee's authority to sign the March 2012 consent judgment, and in turn, the question of whether the First Defendant's interest in the subject property vested in the Trustee - whether the exclusive jurisdiction of the Federal Court of Australia and the Federal Magistrates Court in bankruptcy requires either of those Courts to determine that issue of authority rather than this court - HELD - the issues for determination must be decided within the exclusive jurisdiction in bankruptcy conferred by Bankruptcy Act 1966 (Cth) section 27 on the Federal Court of Australia and the Federal Magistrates Court. Legislation Cited: Bankruptcy Act 1966 (Cth) Family Law Act 1975 (Cth) Real Property Act 1900 (NSW) Uniform Civil Procedure Rules 2005, rr 36.16 or 36.15 Cases Cited: ANZ Banking Group Limited v Donnelly [2012] NSWSC 1615 Broadway Credit Union Limited v Bellamy [2000] NSWSC 778 Charan v Gleeson [2010] FMCA 703 Corke v Corke (1994) 48 FCR 359 Green v Schneller (2001) 189 ALR 464 Masters v Cameron (1954) 91 CLR 353 Mitrovic v Koren [1971] VR 479 National Australia Bank & Anor v The State of Victoria & Ors [2010] FCA 1230 Nullagine Investments v Western Australian Club (1993])177 CLR 635 Scott v Bagshaw (2000) 99 FCR 573 Sutherland v Brien (1999) 149 FLR 321 Whyte v Williams [1903] 29 VLR 69 Category: Interlocutory applications Parties: Plaintiff/Respondent:- National Australia Bank Limited First Defendant/Applicant:- Kim Francis Hunter Second Defendant/Applicant:- Kim Lee Hunter Representation: Counsel: Plaintiff/Respondent:- B. Koch First & Second Defendants/Applicants:- P.G. Cutler Solicitors: Plaintiff/Respondent:- Lisa Gaye Dorman, Turks Legal First & Second Defendants/Applicants:- Kim Lee Hunter, Hunter Flood Lawyers File Number(s): 2011/356806