Blake v Leondiou (No 2) - [2011] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BLAKE v LEONDIOU & ANOR (No 2)
[2011] SASC 152
Reasons of Judge Lunn a Master of the Supreme Court
22 September 2011
PROCEDURE
Second defendant paid money into Court, with a denial of liability, in satisfaction of plaintiff's claim - such payment not authorised by the applicable 2006 Civil Rules - application by second defendant for payment out to it of monies in Court before trial of the action - held monies under the control of the Court and second defendant had not made out any sufficient ground of mistake or change of position or circumstances to justify an order for payment out - application refused.

EQUITY - TRUSTS AND TRUSTEES
Monies paid into Court by trustee - whether paid in under s 47 Trustee Act 1936 - held not to have been, as proper procedures under s 47 not followed and terms of notice of payment in were inconsistent with s 47 being invoked.

BLAKE v LEONDIOU & ANOR (No 2)
[2011] SASC 152
JUDGE LUNN:
Reasons on second defendant’s application for payment out of monies in Court

In late 2007 there were dealings between the plaintiff and the first defendant which resulted in a property at 13 Bagot Ave, Mile End, (“the property”) being purchased for $470,000. At settlement the property was transferred into the name of the second defendant, which was a company controlled by the first defendant.[1] The plaintiff contributed $94,239 to the monies which were used to effect settlement.[2] The balance of the monies necessary to complete the purchase were partly provided by the first defendant[3]   and the balance was borrowed by the second defendant. The plaintiff now contends that by virtue of their respective contributions to the purchase of the property, she has an 80 per cent beneficial interest in it and the first defendant has a 20 per cent beneficial interest. This is disputed by the defendants. While the defendants do not now deny that the plaintiff has some beneficial interest in the property by virtue of her contributions towards its purchase, they say their contributions to its purchase were far greater than those of the plaintiff. These matters will need to be resolved by a trial Judge.
[1]    There is a dispute about whether the plaintiff was to have some interest or role in that company.
[2]    The defendants allege the plaintiff was not beneficially entitled to all of this money and it is impossible to resolve that question on the affidavit evidence before me.
[3]    He alleges a contribution of $27,599 by himself and another $11,500 from his associate, Helen Bowes. These amounts are in issue.
The parties intended that after its purchase the property should be used for the business of a rooming house. However, the relationship between the plaintiff and the first defendant quickly broke down. The plaintiff was excluded from the conduct of that business and it has been carried on since early 2008 by the defendants who have not accounted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blake v Leondiou (No 2)

Details

AGLC: Blake v Leondiou (No 2) [2011] SASC 152
Case: [2011] SASC 152
Decision Date: 22 September 2011

CaseChat Overview and Summary

In the matter of Blake v Leondiou (No 2), the dispute involved the proper procedures under the Trustee Act 1936 concerning the payment of funds by a trustee into court. The parties involved were Blake, the beneficiary of a trust, and Leondiou, the trustee. The nature of the dispute centred around whether the payments made by the trustee into the court were in accordance with section 47 of the Trustee Act 1936. The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the payments made by the trustee into court were properly executed under section 47 of the Trustee Act 1936. The court was required to determine if the procedures outlined in section 47 were followed and if the terms of the notice of payment in were consistent with the invocation of section 47. This involved examining the formal requirements and the substantive criteria necessary to establish that the trustee had adhered to the proper procedures mandated by the statute.

The court concluded that the payments were not made under section 47 of the Trustee Act 1936. It found that the trustee had not followed the proper procedures, and the terms of the notice of payment in were inconsistent with section 47 being invoked. The court emphasised that the statutory requirements for payments into court by a trustee must be strictly adhered to, and any deviation from these requirements invalidates the invocation of section 47. This conclusion was based on a detailed analysis of the statutory language, the procedural steps taken, and the content of the notice provided.

The final orders of the court reflected its findings that the payments in question were not made under section 47 of the Trustee Act 1936. The court directed that the funds remain in court pending further orders, ensuring that the proper procedures are followed in any future dealings with the trust assets. This decision underscored the importance of compliance with statutory provisions in the administration of trusts.

Orders