FEDERAL COURT OF AUSTRALIA

National Australia Bank Limited v State of South Australia [2015] FCA 48

THE COURT ORDERS THAT:

1.    The hearing of the originating application be adjourned to 10.15 am on 17 March 2015.

2.    On or before close of business on 12 February 2015, the applicant is to serve on Mrs Judith Siegmann, by registered post, at 7 Dalziel Street, Whyalla Playford in the State of South Australia:

(a)    the originating application;

(b)    the affidavit in support of Edward Grieve;

(c)    the applicant’s outline of written submissions;

(d)    Exhibit A;

(e)    a copy of the ex tempore reasons; and

(f)    a copy of these orders.

3.    The applicant is to advise Mrs Siegmann that the originating application will be heard on 17 March 2015 commencing at 10.15 am.

4.    The applicant has liberty to apply on the giving of 24 hours’ notice.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        An originating application dated 3 December 2014 came on for hearing before me this morning. The applicant seeks an order vesting certain property in it pursuant to s 133(9) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).

2        The applicant, National Australia Bank Limited (NAB), was represented by counsel. Submitting notices had been served by two other parties who arguably have an interest in the property the subject of these proceedings.

3        Mr White, who appeared with Mr Elliot for the NAB, read an affidavit in support by Mr Edward Grieve. He also tendered a bundle of correspondence between the bank’s solicitors and Mrs Judith Siegmann.

4        Mrs Siegmann is not a party to the proceedings nor, on the face of the documents before the Court, does she appear to have an interest in the subject property within the meaning of s 133(9) of the Bankruptcy Act. However, it is evident from correspondence which has been tendered (Exhibit A), that the Siegmanns were not in default of monthly repayments of the mortgage relating to the subject property. Mrs Siegmann asserted in a letter dated 18 August 2014 that she was still in a position to make those repayments.

5        It is unclear from the material that is currently before the Court whether Mrs Siegmann could have an interest in property for the purposes of s 133(9) of the Bankruptcy Act. It may be that she wishes to be heard on this question or make submissions generally as to the order sought by the applicant. It is to be noted in this context that s 133(9) of the Bankruptcy Act contemplates that the Court, in determining whether to exercise its discretion under that provision, may hear from such persons as it thinks fit.

6        In my view, it is appropriate that Mrs Siegmann be given notice of the application and the supporting documents, and that she be provided with an opportunity to seek whatever legal advice she may wish, and determine whether or not she wishes to take the necessary steps to be heard in respect of the originating application.

7        For those reasons, I consider that it is appropriate to adjourn the hearing of the originating application to 10.15 am on 17 March 2015, and to make appropriate orders, with a view to ensuring that Mrs Siegmann is given notice of the proceedings and an opportunity to consider whether she wishes to be heard in respect of the originating application.

Associate:    

Dated:    5 February 2015