In the matter of Energy Brix Australia Corporation Pty Ltd (in liq) [2022] VSC 700 (7 November 2022)

2 Energy Brix Australia Corporation Pty Ltd ('EBAC') was established in 1993, under its former name of Energy Brix Australia Corporation, as a state-owned enterprise.[2] Until 1996, it operated a 110 megawatt brown coal power station on the Land. The facility, known historically as 'the Morwell Power Station and Briquette Factories', was constructed between 1949 and 1959 by the State Electricity Commission of Victoria ('the SEC') and is located approximately two kilometres south-east of the Morwell Railway Station. It is a large industrial complex comprising the power station, two briquette factories, a coal transportation system, storage areas, and ancillary buildings. The construction of the facility was the centrepiece of the Victorian Government's post-war strategy to revitalise local industry and economic growth through the development of the Latrobe Valley as the State's principal power and energy producing region.

3 In July 1996, EBAC was formally incorporated as a proprietary company and in the following month the State sold EBAC to HRL Limited ('HRL'), which formed part of the HRL Group of companies, as part of the State Government's privatisation program at the time.

4 On or about 21 August 1997, the State entered into a 'Custody Deed' with EBAC, the SEC, and the Victorian Treasurer, pursuant to which a 'closure fund' was created and held by an independent trustee for the purpose of paying ongoing liabilities of EBAC in connection with the Land, including costs of remediation of environmental contamination. The Custody Deed has been amended and restated on a number of occasions.

5 On 27 October 2015, EBAC (and other companies in the HRL Group) appointed Messrs Stephen Longley, Ian Carson, and Craig Crosbie as voluntary administrators. On 2 June 2016, at a second meeting of creditors, it was resolved that EBAC and other companies in the HRL Group be wound up. Messrs Longley, Carson, and Crosbie were then appointed liquidators of EBAC. Subsequently, on 19 March 2021, Mr Carson retired as a liquidator. For the purpose of these reasons, I will refer to the remaining liquidators as 'the Liquidators'.

6 On 24 May 2017, the Environment Protection Authority issued a clean-up notice ('Clean-Up Notice') to EBAC in respect of the Land under s 62A of the Environment Protection Act 1970 (Vic) ('the EP Act'). The Clean-Up Notice stated that as a result of the use of the Land for more than 50 years as the site of a coal-fired power station and brown coal briquetting factory, a range of hazardous materials (including asbestos, chrome refractory and polychlorinated biphenyl) were used, and a range of wastes (including coal sludge, boiler ash and fly ash) were produced, on the Land. Contamination of hydrocarbons, copper, nickel and zinc was detected in soil, sediment and groundwater on the Land. The Clean-Up Notice required, among other things, that EBAC complete a statutory environmental audit in accordance with s 53X of the EP Act and to establish a 'clean-up plan'.

7 On 21 December 2017, the Liquidators entered into a sale and purchase agreement with Gippsland Infrastructure Pty Ltd ('Gippsland Infrastructure') to sell the Land ('the Sale Agreement'). The Sale Agreement contained a condition precedent that EBAC comply with the requirements of the Clean-Up Notice and demolish the power station and associated buildings.

8 To fund the necessary remediation works, on 24 August 2020, the Liquidators and EBAC entered into a funding deed with the State. The funding was initially limited to $5 million, although that amount was subsequently increased on a number of occasions by way of side letters. On 15 March 2021, the Liquidators sent a letter to a representative of the State, in effect stating that as a result of an inability by the Liquidators to obtain additional funding to complete the remediation works, the Liquidators intended to disclaim the Land as onerous property pursuant to s 568 of the Corporations Act. They ultimately did so on 7 April 2021.

9 As a result of the disclaimer, the sale to Gippsland Infrastructure did not complete. The State now intends to sell the Land to Gippsland Infrastructure itself. To do so, the State seeks to be recorded as the registered proprietor of the estates in fee simple of the properties comprising the Land. The State's lawyers have made enquiries of the Registrar of Titles for Victoria in relation to the relevant procedure to vest the registered legal title in the State following the disclaimer of the Land. On 2 June 2021, the Registrar of Titles directed the State's lawyers to a Customer Information Bulletin,[3] which noted that a person with an interest in disclaimed property may apply for a Court order vesting the property in them pursuant to s 568F of the Corporations Act and then apply to be registered as the proprietor of the relevant land under s 59 of the Transfer of Land Act 1958 (Vic) ('the TLA'). The Bulletin also relevantly states:

Persons wanting to deal with disclaimed property must prove that they are able to do so. This may mean they must seek a vesting order from a court of competent jurisdiction; or, they produce the relevant declarations from a court, together with the appropriate application for dealing with the land.

10 A pro forma application form is required to be lodged by the State with the Registrar of Titles, annexing a copy of any vesting order made, to enable the registration of the State as proprietor of the Land under s 59 of the TLA.

11 Following its initiation, the plaintiff's lawyers organised for the application and supporting material to be served on the Registrar of Titles, the Liquidators, and Gippsland Infrastructure. No response has been received from the Registrar of Titles. Gippsland Infrastructure acknowledged receipt of the material and, aside from providing additional historical context concerning the Land, did not provide further comment on the application. A representative of the Liquidators replied on 18 October 2022, stating that the Liquidators did not intend to appear at the hearing of the application and requested an update on the outcome. However, on 3 November 2022, on the evening prior to the hearing, the Liquidators sent a letter to the State ('the 3 November 2022 letter')[4] asserting, amongst other things, that:

(a) the Liquidators disclaimed the Land because they were unable to obtain sufficient funding to complete remediation works on it;

(b) the Sale Agreement would have seen a considerable increase in the funds available for distribution to the creditors of EBAC but did not proceed because of a lack of funding;

(c) prior to disclaiming the Land, the Liquidators had caused significant work to be undertaken in order to make the property saleable and to maximise a return to creditors; and

(d) they wished to be informed of, and understand, any issues relating to EBAC's examinable affairs, including with respect to the present application and the implications, if any, for the company's creditors.

12 In the correspondence, the Liquidators requested clarification of whether the State had completed remediation works on the Land to enable a sale to Gippsland Infrastructure and if so, how such works were funded. They also asked whether the State would contemplate making a payment to the Liquidators, for the benefit of EBAC's creditors, 'in recognition of the significant steps taken by the Liquidators to prepare the [Land] for sale which the State has assumed the benefit of'. The letter requested a response from the State as soon as possible to enable the Liquidators to consider whether it was necessary to appear at the hearing and make submissions.

13 Following the commencement of the hearing on 4 November 2022, the matter was stood down to enable the State's representatives to make contact with the Liquidators to clarify their position. When the matter resumed, the Court was informed of a telephone call between Mr Jonathan McRostie, one of the lawyers for the State, and Mr Longley on behalf of the Liquidators, in which Mr Longley stated that the Liquidators had no issues with the orders proposed by the State and did not seek to appear at the hearing or make submissions. I note Mr McRostie has sworn an affidavit exhibiting an email sent later that day to the Liquidators confirming the substance of the telephone call.

14 It follows that the application is not opposed by any party who was notified of it. Further, inquiries of the Liquidators' office suggest that no other person has made any application under s 568E of the Corporations Act to set aside the disclaimer or under s 568F of the Act to seek a vesting of the disclaimed Land.

15 At the hearing on 4 November 2022, the Court raised with the plaintiff's counsel the existence of a caveat lodged on one of the parcels comprising the Land[5] by Central Gippsland Region Water Corporation ('Gippsland Water'). The caveat was ostensibly lodged pursuant to a statutory charge arising under the Water Act 1989 (Vic). Counsel confirmed that as a result of an oversight, Gippsland Water had not been informed of this application, but submitted that it would not be prejudiced because ancillary orders would be sought by the State to ensure the vesting of the Land was subject to the relevant caveat. This ancillary relief invokes the inherent power of the Court and necessitated the making of a referral order by a trial Judge.

16 The matter was stood over until today to enable a referral order to be made and for the State to produce an affidavit outlining the recent correspondence between its representatives and the Liquidators. On 4 November 2022, Connock J made an order that the originating process filed on 14 October 2022 be referred to an Associate Judge for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and, if required, also pursuant to r 16.1(3) of the Supreme Court (Corporations) Rules 2013 (Vic). The affidavit of Mr McRostie was then filed this morning prior to the resumption of the hearing.

17 In support of its application, the State relies upon: the affidavit and its exhibits of Sam Burke, a director of Land and Property at the Department of Treasury and Finance, affirmed on 6 October 2022; the affidavits and exhibits of Jackson Macaulay, solicitor, affirmed on 2 November 2022 and 3 November 2022; and the affidavit and exhibits of Jonathan McRostie sworn on 7 November 2022. The State also filed comprehensive written submissions dated 3 November 2022 and prepared by counsel.

18 The disclaimer of property by a liquidator is governed by the legislative scheme in Div 7A of Pt 5.6 of the Corporations Act, which comprises ss 568 to 568F. Section 568(1) allows liquidators of a company to disclaim onerous property, including land burdened with onerous covenants, property that is unsaleable or not readily saleable, or 'property where it is reasonable to expect that the costs, charges and expenses that would be incurred in realising the property would exceed the proceeds of realising the property'. The Court's leave is not required for the disclaimer to take effect. Under s 568A, the liquidator must lodge a written notice of the disclaimer with the Australian Securities and Investments Commission and give notice to persons who may have an interest in the property. If no person who has received notice of the disclaimer applies under s 568B to set aside the disclaimer within 14 days, s 568C provides that the disclaimer 'takes effect'. Section 568D explains the effect of a disclaimer as follows:

A disclaimer is taken to have terminated ... the company's rights, interests, liabilities and property in or in respect of the disclaimer property, but does not affect any other person's rights or liabilities except so far as necessary in order to release the company and its property from liability.

19 Section 568E relevantly provides:

(1) With the leave of the Court, a person who has, or claims to have, an interest in disclaimed property may apply to the Court for an order setting aside the disclaimer after it has taken effect.

(4) On an application under subsection (1), the Court:

(a) may by order set aside the disclaimer; and

(b) if it does so - may make such further orders as it thinks appropriate, including orders necessary to put the company, the liquidator or anyone else in the same position, as nearly as practicable, as if the disclaimer had never taken effect.

20 It is appropriate to set out s 568F of the Corporations Act in full:

(1) The Court may order that disclaimed property vest in, or be delivered to:

(a) a person entitled to the property; or

(b) a person in or to whom it seems to the Court appropriate that the property be vested or delivered; or

(c) a person as trustee for a person of a kind referred to in paragraph (a) or (b).

(2) The Court may make an order under subsection (1):

(a) on the application of a person who claims an interest in the property, or is under a liability in respect of the property that this Act has not discharged; and

(b) after hearing such persons as it thinks appropriate.

(3) Subject to subsection (4), where an order is made under subsection (1) vesting property, the property vests immediately, for the purposes of the order, without any conveyance, transfer or assignment.

(4) Where:

(a) a law of the Commonwealth or of a State or Territory requires the transfer of property vested by an order under subsection (1) to be registered; and

(b) that law enables the order to be registered;

the property vests in equity because of the order but does not vest at law until that law has been complied with.

21 I note that there is apparently no time limit on the making of an application under either ss 568E or 568F.

22 Section 9 of the Corporations Act defines 'property' to mean 'any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description.'

23 Finally, s 59 of the TLA relevantly provides:

(1) A person may apply to the Registrar to become the registered proprietor of land that has been vested in the person -

(a) by or under any Act, including a Commonwealth Act; or

(b) by order of a court.

...

(3) Upon granting of an application made under subsection (1), the Registrar must register the applicant as the proprietor of the land, and that person becomes the registered proprietor and transferee of the land.

24 The case law suggests that the disclaimer of an interest in real property under Div 7A of the Corporations Act gives rise to a form of escheat of the disclaimed interest to the Crown.[6] I accept the submission of the plaintiff's counsel that the precise scope and nature of that escheat has not yet been fully delineated.

25 The doctrine of escheat, which is dependent on the feudal notion of tenure, was comprehensively explained by Bryson J in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd[7] and Heenan J in Rams Mortgage Corporation Ltd v Skipworth (No 2).[8] In essence, under common law, escheat refers to a situation whereby a fee simple interest in real property comes to an end and ownership in the property re-vests or reverts in the Crown. The radical title in the property merges in the Crown, which is then entitled to re-grant the land as it sees fit.[9] As explained by the learned author of Butt's Land Law,[10] under an escheat, the Crown takes back what had always been its own property, subject only to the intervening (but now ceased) rights that had been granted to the tenant or holder of the property.[11]

26 The learned author further explains that the last remnants of the doctrine of escheat in contemporary Australian law can be found in Commonwealth legislation, specifically the disclaimer provisions under Div 7A of Pt 5.6 of the Corporations Act and in the equivalent process in s 133 of the Bankruptcy Act 1966 (Cth).[12] Under these legislative provisions, the Crown takes back land formally granted, subject to previously created mortgages and charges,[13] including those arising under statute or registered under the Torrens system.[14]

27 The weight of authority indicates that even though the escheat arises as a consequence of Commonwealth legislation, the property reverts to the Crown in right of the State that granted the relevant interest, rather than the Commonwealth.[15]

28 There are, however, aspects of the disclaimer regime in Division 7A of the Corporations Act that do not sit comfortably with the traditional concept of escheat. For example, although s 568D(1) indicates that certain charges of third parties in respect of the property subsist following a disclaimer, this is difficult to reconcile with the disappearance of the company's interest in the property over which those charges are given.[16] It appears that a chargee's right to enforce a charge is limited to those rights that had accrued before the date of the disclaimer because as a result of the disclaimer, the company's future liability in connection with the property is brought to an end and there exists no personal covenant between the Crown and the chargee.[17] This would mean that, in the absence of a vesting order, a mortgagor or chargee would not be able to take any action to realise the security.[18]

29 Further, in National Australia Bank Ltd v New South Wales,[19] Rares J observed by way of obiter that:

... by force of a disclaimer under the Bankruptcy Act (or Div 7A of Pt 5.6 of the Corporations Act) the title to the fee simple or other property does not escheat absolutely to the Crown in right of the State because the Court can make an order vesting that title in someone else. The Court's power to make such a vesting order is created by a law of the Commonwealth (s 133(9) of the Bankruptcy Act or s 568F(1) of the Corporations Act). By force of s 109 of the Constitution of the Commonwealth that law supplants any inconsistent automatic operation of a law of a State to the extent that some form of immediate and indefeasible escheat to the Crown in right of the State would otherwise have occurred. As I have observed, the ordinary incidents of an escheat are not readily seen as conformable with its suggested application to disclaimers. [20]

30 In other words, the existence of the vesting power under s 568F of the Corporations Act qualifies the escheat to the Crown because the escheat is dependent on the Court not making an order vesting the land in some other person[21] or setting aside the disclaimer under s 568E on application by an interested person. Further, as counsel for the State submits, and I accept, there is also a tension between the doctrine of escheat, which relies on a feudal concept of tenure, and the modern statutory basis for a registered proprietor's interest in real property.[22] Where title to property goes after a disclaimer and the resulting escheat is somewhat opaque.[23]

31 I turn then to the operation of the vesting provision in s 568F of the Corporations Act. It is apparent that the section confers a broad discretion on the Court to vest disclaimed property in any 'appropriate' recipient.[24]

32 The historical development of the vesting power now found in s 568F was extensively surveyed by M Osborne J in David Barry Logistics Pty Ltd v Victoria ('David Barry Logistics').[25] For present purposes, it is sufficient to note that the earliest vesting order provisions could be found in s 23 of the Bankruptcy Act 1869 (UK) and s 267(6) of the Companies Act 1929 (UK). The latter provision allowed the Court to make a vesting order on such terms as the court thought 'just'. The legislative successor to that provision is s 181(3) of the Insolvency Act 1986 (UK), which also permits the making of a vesting order on such terms as the court 'thinks fit'. Similarly, s 133(9) of the Bankruptcy Act 1966 (Cth) allows the Court to make a vesting order 'on such terms as the court considers just and equitable'. Whilst a number of the legislative predecessors to s 568F of the Corporations Act contemplated a vesting order being made 'on such terms as the Court thinks just',[26] the current provision does not contemplate a vesting order being made on terms or subject to conditions. However, in Westpac Banking Corporation v Western Australia, Re Conco Construction Services Pty Ltd,[27] Jackson J explained that 'it is common to make orders imposing terms and conditions ... and it is reasonably ancillary to the Court's power to make a vesting order for such terms and conditions to be imposed'.[28] In that case, terms and conditions were imposed, including to enable a mortgagee in whom the relevant property was vested to act as if it were exercising its powers as mortgagee in possession and to make provision for the payment of statutory charges and the treatment of any surplus from a sale of the property.

33 Although s 568D describes the effect of a disclaimer of onerous property by a liquidator on third party interests, s 568F does not provide any equivalent guidance. The precise effect of a vesting order on the existing rights of third parties, including chargees, is unclear. As M Osborne J observed in David Barry Logistics, the vesting order provisions have received very little judicial consideration throughout their existence and scarce guidance is available on their proper interpretation and application.[29] His Honour also stated by way of obiter that the scope of s 568F should be construed to give effect to the purpose of Div 7A of the Corporations Act, namely to ensure as little disturbance as possible to the rights and liabilities of all interested parties.[30] Taking such a purposive approach, it might be assumed that if a charge survives the disclaimer and escheat of the property, it should also survive a vesting order made by the Court. Nevertheless, the matter is not without doubt and the parameters of s 568F of the Corporations Act have not yet been defined. In light of this uncertainty, it may be appropriate to make a vesting order on terms, or subject to conditions, to preserve the position of a chargee.[31]

34 Having regard to the principles discussed above, and by way of summary, a plaintiff will be entitled to a vesting order if the Court is satisfied that:

(a) a disclaimer of onerous property has occurred (ss 568 and 568D of the Corporations Act);

(b) the plaintiff has an interest in the disclaimed property (s 568F(2)(a)); and

(c) the plaintiff is entitled to the disclaimed property (s 568F(1)(a)) or is a person in or to whom it seems to the Court appropriate that the property be vested or delivered (s 568F(1)(b)).

35 Further, in circumstances where there is concern about the possible adverse impact of a vesting order on the interests of the holder of any mortgage or charge, or other third-party, a vesting order may be made on terms, or subject to conditions, to protect those interests.

36 I am satisfied that the conditions necessary to enliven the Court's discretion to make a vesting order under s 568F(1) in favour of the State are met in this case.

37 The Land was disclaimed by the Liquidators on 7 April 2021 under s 568 of the Corporations Act. There is no reason to believe that the disclaimer was ineffective. As a consequence of the disclaimer, there was an automatic escheatment of the Land to the State. The rights of Gippsland Water as chargee were unaffected by both the disclaimer and escheat and its statutory charge ran with the Land.

38 It is clear that the State has an interest in the Land because, as a consequence of the disclaimer, the Land has escheated to it, albeit likely on a provisional basis. The State is currently in control of the Land in circumstances where the Clean-Up Notice remains in effect. Further, the State has historically taken responsibility for the remediation of the Land because it has funded those works. On one view, the State is effectively holding the Land as custodian pending the making of this application. Lastly, there is nothing in s 568F that excludes the State as a person[32] who may bring an application for a vesting order. The State's standing is established for the purpose of s 568F(2)(a) of the legislation.

39 The evidence indicates that no other person has made any application under either s 568E of the Corporations Act to set aside the disclaimer or under s 568F to vest the Land. The matters raised by the Liquidators in the 3 November 2022 letter do not equate to an interest in the Land and, in any event, they have already disclaimed it.

40 In my view, it was appropriate for the State to bring this application because the precise nature and scope of the escheat, which occurred upon the Liquidators' disclaimer of the Land, is uncertain. In particular, it is unclear whether the State's resulting interest in the Land is absolute or conditional upon no order being made by the Court under ss 568E or 568F of the legislation in favour of any other person with a claimable interest. However, because there is no apparent time limit on the making of an application under either ss 568E or 568F, the State's interest remains susceptible to the making of an application for any such order in the future (however unlikely that may be). A vesting order would confirm the State's interest in the Land as being absolute and enable the State to be recorded as registered proprietor of the estates in fee simple of the Land in accordance with s 29 of the TLA and the requirements of the Registrar of Titles.

41 Regardless of whether the State is 'a person entitled to the property' for the purpose of s 568F(1)(a),[33] I accept the State's submission that it is 'appropriate' for the Land to vest without qualification in the State for the purpose of s 568F(1)(b). The evidence discloses that the Land was originally owned by a State-owned enterprise. Further, the State has already contributed significant monies towards the Land's remediation. Once title in the Land has vested absolutely in the State as registered proprietor, it will be in a position to sell the Land to Gippsland Infrastructure and effectively defray some of the costs already incurred on behalf of Victorian taxpayers.

42 In exercising my discretion under s 568F, I will make an order that the Land vest in the State accordingly.

43 Although Gippsland Water ought to have been notified of this application, I consider that it is consistent with the purpose of s 568F for the vesting order to be framed in such a way as to cause as little disturbance to the rights of Gippsland Water as possible. The vesting of the Land will be explicitly subject to the caveat lodged by Gippsland Water in respect of the statutory charges owing to it. Such an order will place Gippsland Water in no worse position than it is in currently.

1 Pursuant to s 568F of the Corporations Act 2001 (Cth), the estates in fee simple in the land known as 412 Commercial Road, Morwell, Victoria 3840, being land more particularly described in certificates of title Volume 10924 Folio 783, Volume 11093 Folio 844, Volume 11093 Folio 845, Volume 10402 Folio 554, Volume 10496 Folio 481, and Volume 10438 Folio 381, vest in the plaintiff.

2 The vesting of the land described in certificate of title Volume 10924 Folio 783 in the plaintiff be subject to the caveat lodged by Central Gippsland Region Water Corporation, with dealing number AM313424X.

3 The plaintiff serve a sealed copy of these orders on:

(a) Stephen Longley and Craig Crosbie as liquidators of Energy Brix Australia Corporation Pty Ltd (in liquidation);

[1] Being the land more particularly described in certificates of title Volume 10924 Folio 783, Volume 11093 Folio 844, Volume 11093 Folio 845, Volume 10402 Folio 554, Volume 10496 Folio, and 481 Volume 10438 Folio 381.

[2] Energy Brix Australia Corporation was established as a 'State body' for the purpose of s 14 of the State Owned Enterprises Act 1992 (Vic): see Victoria Government Gazette, No S 72, 5 October 1993 at 1.

[3] See Land Victoria Customer Information Bulletin 146, December 2014.

[4] The letter was marked for identification by the Court as 'MFI-1'.

[6] Re Tulloch Ltd (1978) 3 ACLR 808, 812-13 (Needham J) ('Re Tulloch'); Re Middle Harbour Investments Ltd (in liq) [1977] 2 NSWLR 652, 662 (Bowen CJ in Eq) ('Re Middle Harbour Investments'). See also National Australia Bank Ltd v New South Wales [2009] FCA 1066; (2009) 182 FCR 52, [21], [23] (Rares J) ('NAB v NSW') and the cases there cited; Tonic v State of South Australia [2019] FCA 1361, [8] (Charlesworth J).

[7] (1998) 45 NSWLR 556, 563.

[8] [2007] WASC 75; (2007) 210 FLR 11, 13-15 ('Rams Mortgage') in the related context of a disclaimer under s 133 of the Bankruptcy Act 1966 (Cth).

[10] Brendan Edgeworth, Butt's Land Law (Lawbook Co, 7th ed, 2017) ('Butt's Land Law').

[13] Attorney-Gen (Ontario) v Mercer (1883) 8 App Cas 767, 772 (Selbourne LC); Re Middle Harbour Investments, 660-4; Re Tulloch, 812-13; Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (1998) 45 NSWLR 556, 564 (Bryson J) ('Sandhurst Trustees'); Muir v Mid Murray Fire Protection Pty Ltd [2014] VSC 547, [15]-[16] (Gardiner AsJ) ('Muir v Mid Murray Fire Protection'); Stacks Managed Investments Limited v State of New South Wales [2016] NSWSC 1349, [11] (Darke J); Australia and New Zealand Banking Group Ltd v Fairfield City Council [2016] NSWSC 668; (2016) 18 BPR 36,045, [33] (Emmett J) ('ANZ v Fairfield City Council'); Tonic Pty Ltd v State of South Australia [2019] FCA 1361, [8] (Charlesworth J); AFSH Nominees Pty Ltd v Western Australia [2022] FCA 1168, [15] (Colvin J).

[14] Sandhurst Trustees, 564; ANZ v Fairfield City Council, [32]-[35].

[15] See Re Condobolin Bila CDEP Ltd (deregistered); Commonwealth v New South Wales [2006] FCA 1330; (2006) 59 ACSR 682, [8]-[9] (Gyles J); Rams Mortgage, 14; ANZ v Fairfield City Council, [32]-[35]. See also David Barry Logistics Pty Ltd v Victoria (2021) 65 VR 233, [213]-[214] ('David Barry Logistics'), where M Osborne J held that personal property disclaimed by a liquidator under the Corporations Act would vest in the relevant State in which the property was located. In that case, his Honour specifically considered the operation of the related doctrine of bona vacantia, but held (at 265-6) that there was no difference in principle between the operation of escheat as applied to land disclaimed by a liquidator and bona vacantia as it applies to personal property the subject of a disclaimer by a liquidator.

[17] Butt's Land Law, [1.130]; Re Tulloch Ltd, 813-15_; Rams Mortgage_, 16-17; Westpac Banking Corporation v Western Australia, Re Conco Construction Services Pty Ltd [2022] FCA 1213, [20] (Jackson J) ('Conco Construction').

[18] Bank of Queensland Limited v Western Australia [2020] FCA 442, [36] (McKerracher J) citing Halsbury's Laws of Australia (LexisNexis Australia, 2015), [295-7220]; AFSH Nominees Pty Ltd v Western Australia [2022] FCA 1168, [19]-[21] (Colvin J); Conco Construction, [20].

[19] [2009] FCA 1066; (2009) 182 FCR 52.

[21] Butt's Land Law, [1.130]; NAB v NSW, 59-60.

[22] See Property Law Act 1958 (Vic) s 18A.

[23] NAB v NSW, 60-1; Muir v Mid Murray Fire Protection, [13].

[24] Re Empire Plant Hire Pty Ltd (in liq) (2021) 64 VLR 1, 6 (Gardiner AsJ); David Barry Logistics, 319.

[25] (2021) 65 VR 233, 315-20.

[26] See s 268(6) of the Companies Act 1938 (Vic), s 219(6) of the Companies Act 1958 (Vic), and s 296(6) of the Companies Act 1961 (Vic). The reference to a vesting order being made 'on such terms as the Court thinks just' was language notably omitted from s 455(11) of the Companies Act 1981 (Vic).

[27] [2022] FCA 1213.

[30] Ibid 322. See also similar statements of the purpose of the regime in Conco Construction, [23] and Sullivan v Energy Services International Pty Ltd (in liq) [2002] NSWSC 937, [37] (Young CJ in Eq).

[31] For example, in Muir v Mid Murray Fire Protection, Gardiner AsJ was prepared to make a vesting order under s 568F in favour of a resident of the relevant disclaimed property on condition that she first payout a mortgage owing on the property.

[32] Section 2C(1) of the Acts Interpretation Act 1901 (Cth) provides that a 'person' includes a 'body politic'.

[33] Counsel for the State clarified at the hearing on 7 November 2022 that it is not argued that s 568F(1)(a) of the Corporations Act is necessarily enlivened and reliance is instead placed on s 568F(1)(b).