Westpac Banking Corporation v State of Victoria

Westpac Banking Corporation sought an order from the Federal Court vesting in itself an interest in land held as tenant in common by the bankrupt’s trustee in bankruptcy. The land in question is located at 8 Lakeside Drive, Cabarita, and was held jointly with the State of Victoria. The dispute arose from a mortgage over the property held by Westpac, and the bank sought to exercise its powers as a mortgagee under the relevant state statutes. The State of Victoria did not appear to defend the proceedings, resulting in the need for the court to consider the application on an ex parte basis.

The court needed to decide whether it could make an order vesting the interest in the property in the bank under section 133(9) of the Bankruptcy Act 1966 (Cth) and whether it could do so despite the absence of the non-bankrupt tenant in common. Additionally, the court had to consider whether it could proceed with the application given that the documents served were incomplete, and certain declarations required under the rules had not been made.

The court found that the absence of the non-bankrupt co-owner did not prevent it from making the vesting order, as the primary concern was the bank’s rights as a mortgagee. Despite the incomplete documents and lack of certain declarations, the court concluded that the application was properly before it and that the bank had established a sufficient basis for the claim. Consequently, the court made the vesting order in favour of Westpac Banking Corporation, allowing it to exercise its powers as a mortgagee under the relevant state statutes. The court also granted leave for the bank to apply for any further orders within 14 days and made no order as to costs if no further application was made.