Ansen v. Sameiro Pty Ltd

[2013] QDC 22

[2013] QDC 22

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3226 of 2008

RENE HENDRICUS GERARDUS ANSEN

and

BRENDA KAY ANSEN

Plaintiff

Plaintiff

and

SAMEIRO PTY LTD (ACN 110 560 051)

Defendant

and

SAMEIRO BUSINESS TRUST               Trust

BRISBANE

..DATE 31/01/2013

ORDER

CATCHWORDS

Uniform Civil Procedure Rules - r56

Proposed consent orders for payment of moneys in court made subject to the filing of an affidavit regarding entitlements on claims by others.

HIS HONOUR:  There is an application proposed to be heard about an oral hearing before the court which deals with the disposition of funds paid into Court some time ago.  Those were approximately $100,000, described as retention moneys held after the sale of a business.  The defendant company is now in receivership and liquidation.  Those in control of it have agreed with the plaintiffs upon an appropriate disposition of the funds in court. 

Mr Long's affidavit has as exhibits two counterparts of a deed of settlement dated 12th December 2012, which has been executed by all parties.  The funds are to go to the plaintiffs as to $60,000, otherwise to the liquidator of the defendant.  In the interim the parties are agreed the funds ought to be transmitted by the Registrar to MSB Lawyers, who are the liquidators' solicitors.  That's the reason why the draft order, which I've initialled, provides for payment out of the moneys in court to the trust account of that firm.

The application is made under rule 561.  Reference to subrule (2) indicates that it has been overlooked; it was appropriate to include in paragraph 1 of the order, at the beginning of it, the following words:  "Subject to the filing of an affidavit of the liquidators of the defendant stating awareness of a right or claim by another person to all or any part of the notice."

The direction to release the moneys should obviously be subject to such a condition.

Order as per initialled draft.

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