McMillan v Bidmonta Pty Ltd, in the matter of the bankrupt estate of David Robert McMillan

In McMillan v Bidmonta Pty Ltd, in the matter of the bankrupt estate of David Robert McMillan, the applicant, who is the estranged wife of the bankrupt, sought a vesting order of the Ebenezer property following the Official Trustee's disclaimer of the bankrupt's interest in the property. The dispute involved the interpretation and application of sections 133(1AA) and 133(9) of the Bankruptcy Act in relation to property that is deemed onerous. The Court was required to determine whether the applicant had standing to seek a vesting order under section 133(9) of the Bankruptcy Act and if the property should be vested in the applicant.

The Court considered the statutory provisions and relevant case law, concluding that the applicant had standing to seek a vesting order as she was a co-owner of the property and a co-borrower under the mortgage. The Court noted that the usual outcome upon disclaimer of onerous property is for it to escheat to the Crown, but section 133(9) allows for an order to vest the property in a person with an interest or liability in relation to the property. The Court found that the applicant, by virtue of her co-ownership and the binding financial agreement, was a person claiming an interest in the disclaimed property. Consequently, the Court made a vesting order in favour of the applicant.

The final orders of the Court were that the Official Trustee's disclaimer of the bankrupt's interest in the Ebenezer property be upheld, and the property be vested in the applicant, subject to the existing mortgage held by Perpetual Trustees Victoria Limited. The applicant was also granted leave to apply for the removal of the existing caveat over the property.