Commonwealth Bank of Australia

[2019] NSWSC 1020

Supreme Court

New South Wales

Medium Neutral Citation:	Commonwealth Bank of Australia [2019] NSWSC 1020
Hearing dates:	9 August 2019
Decision date:	09 August 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1.   Order the plaintiff (Commonwealth Bank of Australia (ACN 123 123 124)), to deposit a solicitor’s trust cheque in the sum of $554,438.19 (being the amount of $572,632.66 less the plaintiff’s costs of and incidental to this summons, determined to be in the sum of $18,194.47) to the Supreme Court of New South Wales in proceedings 2019/207720, such funds not to be disbursed without further order of the Court. 2.   Direct the plaintiff, within seven days, to notify the in-house legal department within Macquarie Group (and/or Macquarie Group Services Australia Pty Ltd) of the orders that have been made today and requesting that (if Macquarie Group or Macquarie Group Services Australia Pty Ltd has any contact details for Mr O’Shea), Macquarie forward to Mr O’Shea a letter (to be prepared by the plaintiff) advising Mr O’Shea of the making of the payment of funds into Court and of his ability to make an application for payment out of Court of those funds.
Catchwords:	CIVIL PROCEDURE — Court administration — Court powers – procedure under Uniform Civil Procedure Rules 2005 (NSW) and Trustee Act 1925 (NSW) - Payment of funds into and out of court less the plaintiff’s costs of and incidental to the summons
Legislation Cited:	National Credit Code 2009 (Cth), s 88 Real Property Act 1900 (NSW), ss 57(2)(b), 58(3) Trustee Act 1925 (NSW), s 95(1) Uniform Civil Procedure Rules 2005 (NSW), r 55.9
Category:	Principal judgment
Parties:	Commonwealth Bank of Australia (Plaintiff)
Representation:	Counsel: R Bianchini (Solicitor)   Solicitors: HWL Ebsworth Lawyers
File Number(s):	2019/00207720
Publication restriction:	Nil

Judgment

1. HER HONOUR: This is an application, by summons filed 4 July 2019, by the plaintiff (the Commonwealth Bank of Australia) seeking an order pursuant to s 95(1) of the Trustee Act 1925 (NSW) and r 55.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for the payment of certain moneys into Court less the plaintiff’s costs of and incidental to the summons.

2. In support of the application the plaintiff has relied upon two affidavits sworn by the plaintiff’s solicitor, Mr Robert Bianchini, those being affidavits sworn 3 July 2019 and 7 August 2019, respectively.

3. The background to the matter may briefly be stated as follows, by reference to the material contained in the affidavits read on this occasion.

4. On 15 September 2009, a Mr Oliver James O’Shea (Mr O’Shea) entered into a loan contract with the plaintiff for the purchase of certain land in Lilyfield, New South Wales (the Property). On 20 September 2009, Mr O’Shea executed a mortgage in favour of the plaintiff securing Mr O’Shea’s obligations under the loan contract. A copy of the mortgage is annexed to the affidavit sworn 7 August 2019 of Mr Bianchini.

5. The plaintiff, on 25 July 2017, issued a default notice under the terms of the contract to Mr O’Shea pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW) (Real Property Act) and s 88 of the National Credit Code 2009 (Cth).

6. On 15 September 2017, a statement of claim was filed in this Court (in proceedings number 2017/280795) in which the plaintiff sought judgment against Mr O’Shea in respect of amounts owing under the loan contract together with possession of the Property. Mr Bianchini has deposed that, in attempting to serve Mr O’Shea with the statement of claim, the plaintiff became aware that the Property was no longer occupied by Mr O’Shea and appeared to have been abandoned. The plaintiff took vacant possession of the Property on 25 January 2018.

7. There is some evidence on the present application (namely an internal email within the offices of the plaintiff’s instructing solicitors) to the effect that Mr O’Shea made contact with the plaintiff after vacant possession was taken and promised to clear the arrears within seven days. The promised payment did not transpire.

8. On 19 May 2018, the plaintiff sold the Property as mortgagee-in-possession. Following completion of the sale of the Property on 18 June 2018, there remain surplus proceeds (after payment of the amount owing to the plaintiff in full) in the sum of $572,632.66. Those funds, less the plaintiff’s costs of storing and subsequently disposing of various goods that were deemed to have been abandoned at the Property at the time of the sale, are currently held in the trust account of the plaintiff’s solicitors. (Insofar as the plaintiff claims its costs of dealing with the abandoned goods out of the proceeds of sale, reliance is placed on cl 22.6 of the memorandum incorporated in the mortgage dated 20 September 2009.)

9. The plaintiff is of the opinion that as sole mortgagor of the property and in the absence of notification of any other competing interest, Mr O’Shea is entitled pursuant to s 58(3) of the Real Property Act, to the surplus proceeds. However, the plaintiff has not been able to locate, or communicate with, Mr O’Shea for the purposes of paying out to him the surplus proceeds.

10. Details of the attempts to locate Mr O’Shea have been set out in the affidavits sworn by Mr Bianchini. The plaintiff understands that Mr O’Shea worked for Macquarie Group Services Australia Pty Limited from March 2008 to August 2009. In particular, the plaintiff had available to it two email addresses for Mr O’Shea. One of those email addresses is an email address apparently associated with Macquarie Group or an entity in the Macquarie Group. Emails to that address have been unable to be delivered. The other email address is a personal gmail address for Mr O’Shea. There has been no response to the emails sent to that gmail address.

11. The plaintiff believes that Mr O’Shea who is a UK citizen may now be resident in the United Kingdom. Attempts to locate or notify Mr O’Shea via Facebook and other enquiries have been unsuccessful.

12. In the circumstances, I am satisfied that an order should be made permitting the payment into Court within seven days of the surplus proceeds of sale (less the costs of disposal of the goods left on the Property) less the amount of the plaintiff’s reasonable costs up to and including the hearing of this application, (which, including disbursements and GST, have been quantified in the amount of $18,194.47) (see the affidavit sworn 7 August 2019 of Mr Bianchini at [6] and [7]).

13. I am, however, of the opinion that there should be a communication to Macquarie Group or to the in-house legal department of Macquarie Group in order to request that, if Macquarie Group has any forwarding address for Mr O’Shea, Macquarie Group forward to Mr O’Shea a letter advising Mr O’Shea of the proceedings and of the payment of the surplus proceeds into Court.

14. Accordingly I will make the following orders:

1. Order the plaintiff (Commonwealth Bank of Australia (ACN 123 123 124)), to deposit a solicitor’s trust cheque in the sum of $554,438.19 (being the amount of $572,632.66 less the plaintiff’s costs of and incidental to this summons, determined to be in the sum of $18,194.47) to the Supreme Court of New South Wales in proceedings 2019/207720, such funds not to be disbursed without further order of the Court.

2. Direct the plaintiff, within seven days, to notify the in-house legal department within Macquarie Group (and/or Macquarie Group Services Australia Pty Ltd) of the orders that have been made today and requesting that (if Macquarie Group or Macquarie Group Services Australia Pty Ltd has any contact details for Mr O’Shea), Macquarie forward to Mr O’Shea a letter (to be prepared by the plaintiff) advising Mr O’Shea of the making of the payment of funds into Court and of his ability to make an application for payment out of Court of those funds.

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Decision last updated: 16 August 2019