FEDERAL COURT OF AUSTRALIA

ING Bank (Australia) Limited v State of Queensland, in the matter of Watson [2017] FCA 411

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth), that the estate in fee simple in the property described as Lot 1 on Registered Plan 609506, Title Reference 30351077 (the 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 715196145 (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 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 of 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 in 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 Trustees in Bankruptcy of the bankrupt estate of Christopher John Watson (Mr Watson) 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)    will 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 Watson; and

(iv)    fourthly, in payment of any subsequent mortgages (if any), and the residue (if any) of the proceeds so received shall be paid into Court in this proceeding;

(e)    must, after any sale of the Property, provide an account of its payments and receipts to:

(i)    Michael John Griffin and Mr Rajenda Khatri as Trustees of the bankrupt estate of Mr Watson;

(ii)    Mr Watson; and

(iii)    the Registrar of the Court;

(f)    the Applicant must pay into Court the surplus, if any, arising from the sale of the Property.

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

REASONS FOR JUDGMENT

DERRINGTON J:

1    On 13 October 2016, Mr Christopher John Watson was made bankrupt on his Debtors’ Petition and a sequestration order was made against his estate. By a further order, Mr Michael John Griffin and Mr Michael John Peldan were appointed as his Trustees in Bankruptcy. Since that occasion Mr Peldan has retired as a partner of the firm that took on the administration of the bankruptcy and Mr Rajenda Khatri has taken his place. The circumstances leading to the making of the above orders are not relevant for the purposes of this application.

2    Immediately prior to his bankruptcy, Mr Watson was the owner of certain real property located at 88 Anakie Street, Emerald in the State of Queensland (“the Property”). The fee simple of the Property is properly described as Lot 1 on RP 609506 County of Denison Parish of Selma having Certificate of Title reference 30351077. A title search of the Register of Titles maintained by the Department of Natural Resources and Mines in Queensland shows that Mr Watson became the registered proprietor of the Property on 11 July 2013.

3    The Property was apparently purchased by Mr Watson with the assistance of a loan provided by ING Bank (Australia) Limited, (“the Bank”). The loan, which was granted pursuant to an agreement which Mr Watson executed on 27 June 2013, was for an amount of $329,600. It attracted a variable rate of interest commencing at 5.23% and was repayable over a period of 30 years. The obligations of Mr Watson under the loan agreement included the requirement to make repayments of an amount of $838.08 every fortnight.

4    For the purpose of securing the repayment of the loan, Mr Watson granted to the Bank a mortgage over the Property. The evidence shows that the mortgage was an “all moneys” mortgage which included the amount of the loan and any other indebtedness of Mr Watson to the Bank. The evidence also reveals that it was executed by Mr Waton on 27 June 2013 and registered on the Register of Titles on 11 July 2013. Its terms included those standard terms of the Bank which had been registered under the Land Title Act 1994 (Qld).

5    The Bank has produced, as part of its business records relating to the loan transaction, a full statement of the account from its inception. The statement discloses that the loan was fully drawn down on 9 July 2013. It also shows that Mr Watson made regular repayments of $450.00 per week, which was slightly more than the $838.08 which the loan agreement required to be paid fortnightly. Those payments continued up until about 11 February 2015. From that point the regular payments ceased. Whilst some irregular payments were made to the loan account from time-to-time, they were not made in accordance with the terms of the loan agreement, nor were they sufficient to satisfy the obligation to make the necessary minimum repayments. The consequence was that default interest was charged to the account. The last repayment by Mr Watson was made on 1 April 2016.

6    The inevitable consequence of Mr Watson’s failure to meet his obligations under the loan agreement followed; being that on 23 May 2016, the solicitors for the Bank sent a Letter of Demand requiring him to remedy the breaches of the loan agreement. The letter also informed Mr Watson that should he fail to comply with the requirement to bring the loan into order, the full amount of the debt under the loan agreement would become payable.

7    A case manager of the Bank has deposed that the letter was sent to the last known address of Mr Watson, being the address of the Property at 88 Anakie Street, Emerald. The delivery of that letter and its enclosures is also deposed to by an employee of the firm of solicitors acting for the Bank. By cl 28.1 of the loan agreement the Bank was entitled to send the letter and accompanying notice to that address for the purposes of the giving notification under that agreement. That clause provided:

Notices

28.1    We may send you notice or any document by any means permitted by law, including by personal delivery, sending it by fax, sending it electronically (including email) or sending it by post to your:

(a)    address shown in the Loan Offer;

…

(c)    last address known to us.

8    The Notice of Default which was enclosed with the letter of 23 May 2016 was purportedly given, inter alia, under the provisions of s 84 of the Property Law Act 1974 (Qld). That section imposes on a mortgagee the obligation to give to a defaulting mortgagor a notice in writing, complying with the requirements of the section, prior to a mortgagee exercising its power of sale. The notice must require the payment of the amount, the failure to pay which constituted the default under the terms of the mortgage, and must afford the mortgagor 30 days in which to remedy the breach. In this case the period of 30 days would have expired at some short time prior to 30 June 2016.

9    The records of the Bank, as appearing in the affidavit in support of the application, disclose that the loan account was not brought into order by Mr Watson at any time after 23 May 2016. It follows that, on the expiration of the 30 day period, the Bank had acquired an unconditional right to enter into possession of the Property and to sell it for the purposes of enforcing the mortgage. Relevantly for this matter, that right had accrued prior to Mr Watson’s bankruptcy.

10    On 9 August 2016 the Bank commenced proceedings against Mr Watson in the District Court of Queensland and, on 26 September 2016, default judgment was entered against him in the amount of $335,226.47.

11    The records of the National Personal Insolvency Index evidence that on 13 October 2016, Mr Watson became bankrupt on his own petition.

12    Pursuant to s 58(1)(a) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Ac) upon the making of the bankruptcy order all right title and interest in the estate of Mr Watson vested in the trustees in bankruptcy. The Property, however, was constituted by a fee simple interest in Torrens system land created and registered under the Land Title Act 1994 (Qld). By reason of the operation of s 58(2) of the Bankruptcy Act, legal title to the Property would not vest at law until the requirements of the Land Title Act 1994 (Qld) have been complied with. The consequence was that, on the making of the bankruptcy order, the trustees only obtained equitable title to the Property and legal title remained vested in Mr Watson. Although the trustees in bankruptcy might have caused the legal title to vest in them by lodging a request with the Registrar of Titles, it is apparent from the Certificate of Title which was tendered in evidence that did not happen.

13    As the Property was subject to the onerous mortgage obligations to the Bank, on about 3 November 2016, the trustees disclaimed any interest in it. They did so by delivering a notice to the office of the Land Registry which identified that the property was burdened by onerous covenants and that the trustees disclaimed any interest in it.

The efficacy of the disclaimer

14    The ability of a trustee in bankruptcy to disclaim property is established by s 133(1) of the Bankruptcy Act which provides that:

(1)    Subject to this section, the trustee may, notwithstanding that he or she has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation to it and notwithstanding, in the case of property the transfer of which is required by a law of the Commonwealth or of a State or Territory of the Commonwealth to be registered, that he or she has not become the registered owner of that property, by writing signed by him or her, at any time disclaim the property.

15    The reference to property in that section includes a reference to any land which is burdened with “onerous covenants” (Section 133(1AA) of the Bankruptcy Act). That latter concept includes financial obligations which can be enforced against the land (Re Tulloch Ltd (1977) 3 ACLR 808, 812-813). Therefore, the section applied to the fee simple interest of Mr Watson in the Property which was subject to the mortgage in favour of the Bank.

16    The effect of the disclaiming of the onerous property was to determine the rights, interests and liabilities of the bankrupt and their trustee in, or in respect of, the property as and from the date on which the disclaimer was made (Section 133(2) of the Bankruptcy Act).

17    The certificate of title relating to the Property, dated 27 March 2017, reveals that at no time was legal title transferred to the trustees such that, at the date of disclaiming, the trustees only held equitable title. On one view of these circumstances, it might be thought that the effect of the disclaimer was merely to disclaim the equitable interest held by the trustee leaving the legal title of the bankrupt unaffected. This potentiality was considered by Edelman J in Westpac Banking Corporation v State of Queensland [2016] FCA 269 at [30] but rejected as his Honour held that, in circumstances such as the present, s 133(1) operated to effect a disclaimer of the legal title to the bankrupt’s real property notwithstanding that the trustee was not possessed of that title. His Honour said:

[31] However, the effect of s 133(1) of the Bankruptcy Act appears to permit the Official Trustee to “disclaim” a title which the Official Trustee never held. This seems to be the effect of the words permitting disclaimer “notwithstanding, in the case of property the transfer of which is required by a law of the Commonwealth or of a State or Territory of the Commonwealth to be registered, that he or she has not become the registered owner of that property, by writing signed by him or her”. The “notwithstanding” clause would not be necessary if the Official Trustee were only disclaiming an equitable right. Further, if this were not the effect of s 133(1) then a possible alternative would be that the bankrupt would continue to hold title to property, either onerous or valuable, despite the bankruptcy and outside any of the limited exceptions in the Bankruptcy Act. That would be inconsistent with the scheme and purpose of the Bankruptcy Act and would give rise to further questions such as whether the registered proprietor held the title on an implied statutory trust for the Crown in right of the Commonwealth or, subject to the interaction with the Land Titles Act 1994 (Qld), the State.

18    Edelman J returned to this topic in his subsequent decision in Commonwealth Bank of Australia v State of Queensland; In the matter of Ginn [2016] FCA 1337. The facts of that matter were relevantly similar to the present, it being an application by a secured creditor for a vesting order in relation to the real property security which the trustee in bankruptcy had disclaimed. The trustee had not transferred title to the land into his name prior to disclaiming. As Edelman J observed, two views existed as to the consequences of this scenario. The first view was that the effect of the trustee not obtaining a transfer of the real property into its name prior to disclaiming was that only the equitable title was disclaimed such that legal title remained in the bankrupt and no escheat to the Crown would occur. The second view was that the effect of s 133(1) was that, by the disclaimer, the trustee disclaimed all of the bankrupt’s rights and interests in relation to the real property including those rights which arose from his being the registered owner. His Honour was prepared to assume the correctness of the second view and he determined the matter on that basis. His Honour was correct to do so as the power to disclaim in s 133(1) is not predicated upon the trustee holding the relevant right or bundle of rights which are to be disclaimed. That appears to be expressly contemplated by the reference to the ability of trustees to disclaim real property despite the fact that they have not become the registered owner of the property. There can be no doubt that the drafters of this legislation, which deals with the disposition of the property of bankrupts, were acutely aware of the consequences of a trustee obtaining equitable title to Torrens system land as a result of it vesting in them but the trustee not causing a transfer of title to be registered on the Register. That is made clear by the operation of s 58(2). It follows that that when s 133(1) affords to the trustee the ability to disclaim property in respect of which the registration of a transfer is required and no transfer to the trustee has occurred, it is enabling the trustee to renounce the rights of the legal owner.

19    There is nothing unusual in this construction of s 133(1). After all, by reason of the making of the sequestration order, the equitable title to the Property vested in the trustee who then beneficially held all of the right, title and interest in it. In effect, the substantive ownership of the rights to the Property belonged to the trustee and not to the bankrupt. To the extent to which the bankrupt held any residual legal interest in the Property by reason of the operation of the Torrens system registration, it held that interest, at best, as a “bare trustee” with the only entitlement to deal with it by doing what is necessary to cause it to be transferred to the trustee in bankruptcy (Byrnes v Kendle (2011) 243 CLR 253). Even then, the entitlements of the bankrupt as the holder of the legal title are diminished by the provisions usually found in Torrens system legislation whereby a trustee in bankruptcy is entitled to cause the transmission of the legal title to themselves without the consent of the legal holder. See, for instance s 115 of the Land Title Act 1991 (Qld).

20    The necessary conclusion from the above is that, on the proper construction of s 133(1) of the Bankruptcy Act, a trustee in bankruptcy is able to disclaim the totality of the ownership rights, titles and interests in relation to Torrens system land owned by the bankrupt at the date of bankruptcy even though no transfer of the title to the trustee has been effected on the relevant register of title. The enabling effect of s 133(1) permits the trustee to disclaim both the equitable ownership and rights which have vested in the trustee as well as the legal title which remained in the bankrupt.

21    On the basis of the material tendered before the Court, the trustees effectively disclaimed the Property. The notice of disclaimer was signed by one of the trustees personally, it adequately identified the bankrupt to whom the notice related as well as the property disclaimed and, for the purposes of s 133(3), it was given to the Registrar of Titles under the Land Title Act 1994 (Qld). There has been no suggestion by any party that the notice of disclaimer was not effective.

Effect of the disclaimer

22    Under the process of the statutory escheat brought about by the operation of s 133(1) of the Act, on the making of the disclaimer the Crown took back the full title to the Property. However, the statutory regime expressly provides that the title received by the Crown is subject to the existing charges on the land (Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (in liq) (1998) 45 NSWLR 556 at 564; Re Woo [2003] FCA 862 at [5] per Madgwick J; Rams Mortgage Corporation Ltd v Skipworth (No.2) (2007) 239 ALR 799 at [10]). How this result is achieved in relation to Torrens system land has been, and remains, the subject of some controversy. The potential inconsistency arises, in cases such as the present, because the existing mortgage had created a charge upon the fee simple interest of the mortgagor and it is difficult to ascertain how such a charge might continue to exist after the fee simple interest is disclaimed and the totality of the interests in the land has reverted to the Crown by escheat (National Australia Bank Limited v State of New South Wales [2014] FCA 298 at [8]). On one view the fee simple interest mergers into the superior interest of the Crown and no longer has an independent existence. That would be consistent with long established principles concerning the merging of leasehold interests which are acquired by the holder of the reversionary interest in the demised land; Purefoy v Rogers (1671) 2 Wms Saund 380; 85 ER 1181. On another view, the fee simple interest vests in the Crown which holds that interest separately but together with the all other interests in the land. Only the second view is able to give effect to the operation of s 133(2) which makes provision for the preservation of the rights of, inter alia, mortgagees after the property is disclaimed. That is because, if the fee simple estate which is the subject of the charges created by the mortgage no longer exists, the charge can no longer exist.

23    In the result, it is not surprising that the current dominant view as to how a disclaimer under s 133(1) operates in relation to mortgaged Torrens system land is that, despite the disclaimer, the fee simple interest which is subject to the charge has a continued existence notwithstanding the occurrence of the disclaimer and escheatment. The reasoning was explained by Perram J in National Australia Bank Limited v State of New South Wales [2014] FCA 298 in the following manner:

8.    Mr Hynes, of counsel, who appeared for the Bank, drew to my attention the apparent tension in the text of s 133 between the determination forthwith of the rights, interests and liabilities of the bankrupt, on the one hand, and the continued existence of the rights or liabilities of other persons, on the other. In a purely theoretical space there is a tension between extinguishing a set of rights which is attached to another set of rights which are not extinguished. The courts, however, have not been troubled by this anomaly. In a series of decisions it has been held that the rights of other persons, and in particular, the rights of mortgagees continue to have sufficient existence to ground an application such as the present one made by the Bank: see, for example, Re Tulloch Ltd (in liquidation) (1978) 3 ACLR 808 at 813 (sic), per Needham J. That reasoning is regarded as orthodox: see National Australia Bank Ltd v Leroy [2003] FCA 862 at [5]- [7]; Rams Mortgage Corp Ltd v Skipworth (No 2) (2007) ALR 799 at [15]-[19]; National Australia Bank Ltd v New South Wales [2009] FCA 1066; (2009) 182 FCR 52 at [29]; and National Australia Bank Ltd v Victoria [2010] FCA 1230; (2010) 118 ALD 527 at [10]- [12].

9.    The immediate consequence of the disclaimer of the onerous property by the Bank was that the Paruna Place property escheated to the Crown in right of New South Wales: see Re Tulloch; NAB v Leroy at [5]; Rams v Skipworth at [8]. It has been said of the operation of s 133 that the Crown holds the property in fee simple and that only the interest of the proprietor goes out of existence on the escheat. The immediate consequence of the escheatment is therefore that the Bank does not presently have the rights it would have had against Mr Elters but for his bankruptcy and presently has no right to enforce its security against the State of New South Wales. …

24    The difficulty with this type of analysis had earlier led Rares J to observe that the “question of where the title goes after a disclaimer is clear as mud” (National Australia Bank Ltd v State of New South Wales (2009) 260 ALR 115, 123 at [28]). However, whether that reasoning is entirely satisfactory, it is not necessary to determine on an application such as the present where there is no active contradictor and, indeed, its correctness has been accepted by a number of subsequent decisions in this court (i.e Commonwealth Bank of Australia v State of Queensland; In the matter of Ginn [2016] FCA 1337 at [16]).

25    It is not infrequent that, in cases considering this question, this issue is avoided altogether by the adoption of the simple conclusion that the land reverts to the Crown by escheat subject to the charges on that land; see Stacks Managed Investments Ltd v New South Wales [2016] NSWSC 1349 at [11] – [13] per Darke J; although it is often not explained how a mortgage of the fee simple in land can exist absent the continued existence of the fee simple.

26    It follows from the analysis above that, despite the escheatment to the Crown, the Court is not prevented from making an order which operates to vest a fee simple title in a person who is entitled to make an application under s 133(9).

Vesting the Property in the Bank

27    The power of this Court to make an order vesting a fee simple interest in the Bank is afforded by s 133(9) which provides:

(9)     The Court may, on application by a person either claiming an interest in, or being under a liability not discharged by this Act in respect of, disclaimed property, and after hearing such persons as it thinks fit, make an order, on such terms as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person entitled to it or a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or a trustee for that person.

28    There seems to be no doubt that a mortgagee of Torrens system land such as the Bank falls within the definition of “a person claiming an interest in … disclaimed property” within the meaning of the opening words of s 133(9). This has been accepted in numerous decisions (See the discussion of Bennett J in National Australia Bank Ltd v Victoria (2010) 118 ALD 527 at [9] – [12] and the reference to the consideration of the issue by Madgwick J in National Australia Bank Ltd v Leroy [2003] FCA 862. See also Westpac Banking Corporation v State of Queensland [2016] FCA 269 per Edleman J; Commonwealth Bank of Australia v State of Queensland; In the matter of Ginn [2016] FCA 1337 per Edleman J; National Australia Bank Ltd v State of New South Wales [2014] FCA 298 per Perram J).

Whether it is just and equitable for the Property to be transferred to the Bank

29    On the uncontested material before the Court, it is asserted that the Bank is in possession of the Property and that it is not occupied by any other person. The Bank had previously given notice to Mr Watson of its intention to exercise its rights under the mortgage and it would appear that he has vacated it. No other person has made any claim to any interest in the property. Since the disclaimer of the Property by the trustees, the Bank has not sought to enforce its mortgage despite having an unfettered entitlement to do so prior to Mr Watson becoming bankrupt.

30    One question which necessarily arises in these circumstances is whether it is appropriate for the Court to make an order vesting the Property if the Bank is entitled to exercise its powers as the mortgagee against the Property to recover the amount which it had lent to Mr Watson together with relevant interest, cost and charges? On the theory which is accepted in this Court, it is apparent that some form of fee simple title exists to which the Bank’s mortgage attaches. That being so, it ought to be possible for the Bank to exercise its rights as mortgagee against the fee simple estate as would be the case in the similar scenario which arises when there is a transfer of land subject to an existing mortgage. This seems to be consistent with the view reached by Helsham J in Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652 concerning the granting of leave to a liquidator to disclaim property in the course of a liquidation. In that matter the Court was concerned that the disclaiming of real property by the liquidator would adversely affect the interests of a mortgagee of that land. His Honour concluded that, despite some uncertainty as to how the mortgage remained unaffected, there was an absence of any identifiable detriment to the interests of the mortgagee as a result of the liquidator disclaiming. In other words, the Court reached the conclusion that the mortgagee’s rights to enforce the security against the land remained unaffected. If that conclusion is correct, a question might arise on an application such as the present as to why it is necessary for the Court to exercise the power under s 133(9).

31    However, despite the above, it seems that there remains some doubt as to the effect of the escheat to the Crown on the rights of a mortgagee and, in this case, whether the Bank as the mortgagee of Mr Watson’s fee simple can now enforce its mortgage given the consequences of the escheat and the vesting of the fee simple in the Crown. The orders proposed by the Bank will remove that uncertainty.

32    One other issue is whether the Bank ought to be relieved of the statutory obligations under the Property Law Act 1974 (Qld) in relation to its exercise of the power of sale and, in particular, the obligation under s 85 of that Act requiring the mortgagee “to take reasonable care to ensure that the property is sold at the market value”. Although it is likely that a financial institution of the standing of the Bank would abide by these standards, it would appear that holding it to those obligations is not appropriate in the circumstances of an application of this nature. First, it is questionable that the actions of the Bank in selling the Property would fall within the scope of that section because any sale will not occur in the exercise of the power of sale under the instrument of mortgage but merely as a sale by the owner of the fee simple. Secondly, although there is no evidence before the Court as to the current value of the land, it can be expected that were it thought that there would be any excess proceeds from its sale after the mortgage debt is paid out, it would not have been disclaimed by the trustees. Third, it can also be expected that the Bank has an interest in maximizing the realization of its security given that only a relatively small part of the loan had been paid off by the time of the default and that the present indebtedness on the account is well in excess of the amount initially borrowed. It should be observed, however, that were it to become the practice of mortgagees to utilize the process provided for by s 133 of the Act to effectively sacrifice any value in the secured property above the amount of the mortgage debt, it is likely that the Court would impose conditions which ensured that reasonable attempts were made to sell the property at the market price.

33    The position, therefore, appears to be as follows. The Bank advanced the sum of $329,600 and received as security for that loan a registered mortgage over the Property. By reason of s 133(1) the rights of the Bank to have recourse to the land are not affected by the disclaiming of the Property by the trustee in bankruptcy but it is far from clear that the manner in which the enforcement of the Bank’s rights might occur will be free from difficulty. Were orders vesting the Property in the Bank not to be made, it is likely that its mortgage will be rendered less efficacious which is something that is not contemplated by the legislation. The Crown, very properly, does not assert any entitlement to the Property in priority to the interests of the Bank. In these circumstances there is no apparent reason why the Bank should not have the Property vested in it to allow it to recover the amount due under the mortgage.

34    By reason of the above, the Bank is an entity in respect of whom a vesting order might be made. It is both “a person entitled to [the land]” and “a person in whom, or to whom, it seems to the Court to be just and equitable that [the land] should be vested or delivered” within the meaning of s 133(9).

The terms on which the vesting order ought to be made

35    The Bank seeks an order vesting the Property in it for the purposes of enabling it to exercise a power of sale as the mortgagee under the extant mortgage. The terms of the proposed orders in that respect are:

Pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth), that the estate in fee simple in the Property described as Lot 1 on Registered Plan 609506, Title Reference 30351077 (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 715196145 (Mortgage).

36    Although there must be some doubt as to whether or not the Bank will, in fact, exercise the powers “as mortgagee”, this form of order is usually made in matters of this nature and there is no reason to depart from it on this occasion.

37    The Bank also seeks orders that:

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 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 of 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 in 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 Trustees in Bankruptcy of the bankrupt estate of Christopher John Watson (Mr Watson) 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)    will 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 Watson; and

(iv)    fourthly, in payment of any subsequent mortgages (if any), and the residue (if any) of the proceeds so received shall be paid into Court in this proceeding;

(e)    must, after any sale of the Property, provide an account of its payments and receipts to:

(i)    Michael John Griffin and Mr Rajenda Khatri as Trustees of the bankrupt estate of Mr Watson;

(ii)    Mr Watson; and

(iii)    the Registrar of the Court;

(f)    the Applicant must pay into Court the surplus, if any, arising from the sale of the Property.

38    These orders which are proposed by the applicants are in what have been described as the “usual terms” for applications of the present type (Commonwealth Bank of Australia v State of Queensland; In the matter of Ginn [2016] FCA 1337 at [19]. See also Australia and New Zealand Banking Group Limited v State of Queensland [2016] FCA 1221). They take into account the entitlement of the mortgagee to take possession of the land for the purposes of recovering its loan free of the restrictions of the mortgage and the statutory obligations relating to mortgagees exercising their powers. They also recognise that the Bank is not entitled to recover more than it is entitled to under the terms of the mortgage and that any excess ought to be paid to the Crown in the right of the State of Queensland.

39    For the reasons set out above, the orders sought by the Bank ought to be made.

Associate:

Dated:    20 April 2017