Westpac Banking Corporation v State of Western Australia, in the matter of Conco Construction Services Pty Ltd

The case of Westpac Banking Corporation v State of Western Australia, in the matter of Conco Construction Services Pty Ltd, dealt with an application by Westpac Banking Corporation, as mortgagee, for an order vesting property in the corporation to allow it to exercise its powers as if it were the mortgagee in possession. The property in question was disclaimed by the liquidator of Conco Construction Services Pty Ltd, a company in liquidation. The legal issues before the court were whether it was appropriate to vest the property in the mortgagee and how any surplus from the sale of the property should be allocated.

The court found that it was appropriate to vest the property in the mortgagee for the purposes of the mortgagee exercising its powers under the Transfer of Land Act 1893 (WA). The court reasoned that the mortgagee was entitled to act as if it were the mortgagee in possession, except for certain statutory requirements, and to calculate the debt secured by the mortgage as if the property had not been disclaimed. The court further determined that the proceeds from the sale of the property should be applied in a specific order of priority, including payment of statutory charges, costs, the mortgage debt, and any subsequent mortgages or caveats, with any surplus paid to the liquidator of the company or, if no liquidator was appointed, to the Court.

In summary, the court made orders vesting the property in the mortgagee with specific conditions on how the mortgagee could act and the allocation of sale proceeds. The mortgagee was required to provide an account of its payments and receipts to the relevant parties and the Registrar of the Court, and to lodge certain documents with the Registrar of Titles at the Western Australian Land Information Authority upon any sale of the property.