Giorgio & Giorgio v Commonwealth Bank of Australia

[1998] QCA 270

Queensland Court of Appeal

Built by Barristers,
For Australian Law.

1. Bankruptcy
2. › Property of bankrupt
3. › Equity of redemption
4. › Vesting in trustee in bankruptcy
5. › Whether bankrupt retains sufficient interest to seek stay of possession proceedings
6. › Bankruptcy Act 1966 (Cth), s 58(2)
1. Bankruptcy
2. › Standing of bankrupt
3. › Right to bring or prosecute proceedings
4. › Proceedings to protect property divested on bankruptcy
5. › Whether bankrupt can independently assert Trade Practices Act and Fair Trading Act defences
1. Practice and Procedure
2. › Stay of execution
3. › Stay pending appeal
4. › Possession of mortgaged premises
5. › Whether applicant has sufficient interest to support stay application
6. › Discretionary considerations

Bankrupt mortgagors whose equitable interest in the equity of redemption has vested in the trustee in bankruptcy retain at most a bare legal title, which is insufficient in substance to support an application for a stay of execution of a warrant of possession pending appeal.
A bankrupt cannot independently assert Trade Practices Act or Fair Trading Act defences to resist a mortgagee's claim for possession, as such claims constitute proceedings to protect property divested on bankruptcy within the meaning of Cummings v Claremont Petroleum.

Citation[1998] QCA 270

CourtQCA

JurisdictionQueensland

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