Bendigo and Adelaide Bank v Gorcyznski
[2015] NSWSC 652
•26 May 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bendigo & Adelaide Bank v Gorcyznski [2015] NSWSC 652 Hearing dates: 26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Common Law Before: Hamill J Decision: Pursuant to r 41.3 of the Uniform Civil Procedure Rules order that all funds in court relating to the proceedings number 2009/293542, be paid to the defendant.
Catchwords: CIVIL - payment of funds held in court - no question of principle Legislation Cited: r 41.3 of the Uniform Civil Procedure Rules Category: Procedural and other rulings Parties: Bendigo & Adelaide Bank Limited (Plaintiff)
Peter Gorcyznski (Defendant)Representation: Solicitors:
(ex parte) (Defendant) B Haines of Holding Redlich
File Number(s): 2009/293542
EX TEMPORE Judgment
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HIS HONOUR: By notice of motion filed on 15 May 2015 Peter Gorczynski, the defendant in proceedings 2009/293542, seeks an order pursuant to r 41.3 of the Uniform Civil Procedure Rules that all funds in court relating to the proceedings be paid to him.
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The matter has a somewhat lengthy history and I have been helpfully and carefully taken through that by Mr Haines, who appears for the defendant. That history can be gleaned from a perusal of the impressive registry file going back to 2009 which is summarised in the affidavit of the defendant sworn or affirmed on 15 May 2015 and the relevant annexures.
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In short, in November 2009 the plaintiff, Bendigo and Adelaide Bank Limited, obtained an order for possession of the defendant’s property and following upon that there was a sale of the property. There was a surplus of around $22,000. There was a dispute at that time as to whom the surplus should be paid and in particular that dispute arose as a result of the existence of a writ registered on the title to Linsman Investments.
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As a result of that, an order was made by Hidden J on 9 June 2010 that the surplus be paid into court. I am told (and I accept) that there was, in fact, a short fall of the amount paid into court. I mentioned earlier that the surplus was around $22,000. The amount paid into court was $16,836. There may be, I am told by Mr Haines, some dispute as to the remaining approximately $5000 but that is not a matter with which I need to be concern.
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In respect of Linsman’s interest, the writ lapsed at some stage in 2010 or possibly 2009 but in any event its efficacy lapsed although it remained on the title. It was then removed from the title and before the matter came to court today there was correspondence between the defendant, Linsman and their lawyers.
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That correspondence is annexed to the affidavit of Mr Gorcynski and I accept that it establishes that Linsman has no objection to the orders being sought and, accordingly, that interest in land which previously caused the surplus to be paid into court is no longer sought, at least for the purpose of these proceedings.
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I am satisfied and I am assured that there is no other person with an interest in that surplus and certainly not the plaintiff or Linsman. As a result of that finding, it is appropriate that I make the orders sought and, accordingly, I order pursuant to r 41.3 of the Uniform Civil Procedure Rules that all funds in court relating to the proceedings number 2009/293542, be paid to the defendant.
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Amendments
02 June 2015 - Typographical errors amended.
Decision last updated: 02 June 2015
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