AMP Bank Ltd

[2012] QDC 105

[2012] QDC 105

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 4924 of 2011

RE:  AMP BANK LIMITED Applicant

BRISBANE

..DATE 19/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules 1999, r 561
Court Funds Act 1973 s 5, s 7
Court Funds Regulation 2009 s 8

Application for payment out of moneys in court - moneys were paid in by a registered mortgagee, being the excess over the mortgage debt realised at a mortgagee sale - applicant had an enforcement warrant registered subsequent to the mortgage - court informed of other potential claimants

- none of those was a "party" under the relevant rule - applicant to receive the moneys in court unless within a limited period after notice of the order to them, the potential claimants approached the court
HIS HONOUR:  This is an application by Michael John Bourke who has represented himself, but apparently with some assistance.  The application is made in a proceeding commenced by a payment into Court on behalf of AMP Bank Limited of $7,351.10 on the 2nd of December 2011.  That sum is the surplus proceeds of a mortgagee's sale which AMP Bank Limited carried out, clear of various costs, including the filing fee of $77.

Mr Bourke had a security interest in the land ranking after the bank's by virtue of an enforcement warrant issued out of the Magistrates Court in Toowoomba consequent upon a judgment he obtained against Mark A Sidaway on 16th of May 2008, the basis of the judgment being an adjudication certificate made under the Building and Construction Industry Payments Act 2004 which was registered in that Court.

There is no copy of the enforcement warrant contained in the material placed before this Court, but the writ number 712799093 appears recorded against the title of the property which had been mortgaged to the Bank.  This is a property on the Sunshine Coast which Mr Sidaway and Caroline Marie Sidaway owned as joint tenants.  The date of that recording is 16th October 2009.

On the 25th of November 2009 and the 22nd of January 2010 caveats by Mr Bourke are recorded against the interests of

Mr Sidaway and Mrs Sidaway respectively.  Those caveats are said to have their justification in mortgages which the Sidaways executed.  Needless to say, the bank's mortgage was registered.

The title searches made available to the Court dated 22nd of February 2010 and 21st October 2011, the latter of which does not mention the caveats, do not show anything of another mortgage which is revealed in the material on the Court file.  This is one by the Sidaways jointly in favour of SAS Solutions and Restructuring Pty Ltd.  On its face, it would appear to have been executed by the mortgagors on the 23rd of April 2010.  There is a "Settlement Notice" culminating in a request for recording in the register in respect of that instrument dated 23 June 2010. 

The amount of Mr Bourke's judgment is $15,523.73, inclusive of interest and costs.

Mr Sidaway has become bankrupt, his trustees being Messrs Griffin and Peldan.  It appears that Mrs Sidaway has passed away. 

The amounts of money involved in this proceeding are, by most standards, modest.  In the circumstances of Mr Bourke being self-acting and not here when the application is considered by the Court I don't have the benefit of assistance as to what might be the status of the moneys paid into Court.  I have not considered whether the bankruptcy might have led to the joint tenancy being severed.  On the assumption that it did not Mrs Sidaway's interest disappears.  The bankruptcy trustees who have at earlier stages apparently asked Mr Bourke to “hold off” now appear to accept that their interest is subject to Mr Bourke's.  On the 19th of August 2010 Mr Peldan sent an email indicating he'd looked at the material and believed Mr Bourke had a valid and enforceable mortgage:

"I have no claim to overturn same under the provisions of the

Bankruptcy Act.  Please feel free to recommence your enforcement action.  Any surplus from the sale of his share of the property should be paid to me as trustee."

More recently, on the 24th of January this year, Mr Peldan sent an email confirming that the situation was as set out in August 2010.

So far as the SAS mortgage is concerned, for all that appears, it has never been registered.  It comes late in time and has been challenged, in particular, by the Kent Law firm acting for Mrs Sidaway, at least.  See their letter to the bank's solicitors of 6 April 2011 which enclosed a copy of an earlier letter to SAS's solicitors of 10 November 2010, making various complaints about the mortgage, including its lack of attestation. 

The letter asserted that Mrs Sidaway lacked mental capacity to understand the import of the document and signed it without legal advice.  It was disputed by the letter, as to the alleged loan amount of $45,000, that there was ever provision of that or any other sum by the mortgagee. 

The Court's in no position to assess anything to do with the merits of the SAS mortgage.  Suffice it to say that faced with competing claims the AMP Bank Limited and its lawyers elected to pay the surplus proceeds from the mortgagee's sale into Court rather than attempt to adjudicate possibly competing claims themselves.  In the process they kept all of those potentially interested as described above informed as to what was going on including, of course, the payment into Court.

Only Mr Bourke has taken any step to seek payment out.  His application has not been served on any person.  As one would expect,  rule 561 sets out to ensure that moneys in Court are not paid out without an opportunity for persons who may have a claim to be heard.

The Court Funds Act 1973 requires in section 5 that moneys paid into Court go into the Court Suitors Fund. They are to be dealt with by section 7 "...in accordance with and subject to this Act and any rules of the Court."

Section 8 of the Court Funds Regulation 2009 provides that unless the Uniform Civil Procedure Rules 1999 provide otherwise, money or securities in Court may only be paid, delivered or transferred out of the Court or be invested or sold under an order of the Court.

The requirement of rule 561(1) of an application like Mr Bourke's is that it be served on all other "parties". In my view, given that it's clear the AMP Bank has paid the moneys into Court, it has no interest. There are no other parties to this proceeding. In some special instances definitions in the UCPR define "party" widely enough to bring in persons who are not strictly parties, the special definitions don't apply to rule 561(1).

So far as sub-rule (2) is concerned the requirement there is on a person such as Mr Bourke, who seeks payment out of Court for money, to state whether he "is aware of a right or claim made by another person”.

It's obscure, I think, where Mr Bourke is so aware, as appears from the foregoing, that he's made the Court aware of all known potential claims. 

Given the modest dimension of the matter, I don't think the Court should contemplate requiring any person to be served with the application.  It's sufficient to leave an opening there for anyone who might wish to oppose the relief Mr Bourke seeks to come to the Court.

Mr Bourke's application seeks that orders made in it "be expedited due to the enforced financial hardship of the applicant due to the respondents' laches."  It's not clear to me who are the respondents, although it rather appears that
Mr Bourke might be the "1ST respondent". 

The Court can do no more for Mr Bourke in this regard than put a time limit on the opportunity that ought to be offered to rival claimants to approach the Court.  Therefore the Court will make the following orders:

1. Pursuant to rule 561, subject to any earlier order that the Court might make, the moneys paid into Court on 2nd December 2001 by AMP Bank Limited, to wit, $7,351.10, together with any accretions, be paid out to the applicant, Michael John Bourke, 14 days after the posting by the Registrar of letters advising the making of this order to:

(a)Norton Rose, solicitors for AMP Bank Limited;

(b)SAS Solutions and Restructuring Pty Ltd care of     Freestone Law Solicitors, P O Box 415, Broadbeach, Queensland 4218;

(c)Michael Richard Peldan and Michael John Griffin, trustees in bankruptcy for Mark Andrew Sidaway;

(d)the Kent law firm, P O Box 564, Coolum Beach, Queensland 4573 who acted for Caroline Marie Sidaway.

2.There be liberty to apply and, in particular, to any of those named in paragraph (a), (b), (c) and (d) above to seek variation of this order within the 14 days period mentioned above.

The Registrar is directed to send out letters accordingly.

Order as per initialled draft.

-----