In the matter of Part IV Trustee Act 1925
[2017] NSWSC 1429
•16 October 2017
Supreme Court
New South Wales
Medium Neutral Citation: In the matter of Part IV Trustee Act 1925 [2017] NSWSC 1429 Hearing dates: 16 October 2017 Date of orders: 16 October 2017 Decision date: 16 October 2017 Jurisdiction: Common Law Before: Campbell J Decision: The matter is adjourned for further hearing before me on 27 October 2017 at 9.30am.
Catchwords: CIVIL PROCEDURE – unclaimed funds – application under UCPR r 41.10 – where mortgagee directed surplus funds to Court – held that identity of mortgagor to be verified Legislation Cited: Trustee Act 1925 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: Mr Murray William Priestley (Applicant) Representation: Counsel:
Solicitors: N Mathey (Applicant)
File Number(s): 1994/49727 Publication restriction: Nil
EX TEMPORE Judgment (REVISED)
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I am dealing with an application for payment out of moneys held in Court under r 41.10 Uniform Civil Procedure Rules 2005 (NSW).
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The amount involved is a sum of a little over $48,000. It is the amount paid into Court together with interest earned on its deposit by the Registrar in a bank account. The original principal was the surplus of the proceeds of a mortgagee sale which took place as long ago as 1 March 1991.
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The money was paid into Court on 22 August 1994 by St George Bank Limited, the mortgagee, under the provisions of Pt 4 Trustee Act1925 (NSW). The moneys have remained on deposit since. The mortgagor, according to the affidavit filed in the Registry at the time of payment in, was a person named Murray William Priestly. The affidavit states that the mortgagor had not advised the mortgagee of a forwarding address and unspecified attempts to contact him had failed.
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By letter dated 22 August 2017 the Principal Registrar wrote to the applicant stating, inter alia, the following:
“This letter has been sent on the understanding that Saintly Grounds is held by the entity (sic) Murray William Priestley (sic), and on the chance that that entity represents the Murray William Priestly of the former address above."
It is not clear to me from my examination of the file what was the basis of the Registrar's understanding referred to in that letter. However, what is clear from the affidavit filed in support of the motion by Murray William Priestley is that he is a landscape gardener who operates a business known as "Saintly Grounds".
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Mr Priestley's affidavit attaches a number of documents to identify him, including his birth certificate, passport and New South Wales driver's licence.
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The birth certificate renders his first name as Murrey, not Murray. However, it also renders his surname as Priestley, and not Priestly. Each of the documents I have referred to, including his Medicare card, have the former, not the latter, spelling of his surname.
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In the affidavit prepared by Mr Mathey, solicitor, who appears today, Mr Priestley explains that he has adopted the spelling Murray rather than the spelling conferred on him by his parents, and that that spelling is carried through all the relevant documents which identify him. However, there is no explanation about the variation in the spelling of his surname.
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Now, the spelling of Priestly is somewhat unusual. The surname is normally spelt Priestley. It is at least possible that that less common spelling results from a typographical error in the affidavit filed on behalf of the mortgagee that then went undetected. However, and I mentioned this to Mr Mathey at the outset, there is nothing really in the affidavit which does identify Mr Priestley as the mortgagor.
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Mr Mathey said from the Bar Table, and I accept what he says, that his client remarked to him that these events occurred when he was young and foolish and got himself into trouble financially so that there was a foreclosure on his mortgage, and all of that has a ring of verisimilitude about it.
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On the other hand, given the discrepancy in his surname and the not insignificant amount involved, I think the matter should be cleared up.
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I did remark to Mr Mathey, perhaps inappropriately in jest, that there was no particular reason why the money should go to the Consolidated Revenue other than, of course, by reason of the fact that is what the law requires if the moneys are unclaimed.
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However, I think the appropriate way to proceed with the matter is to give Mr Priestley the opportunity to clear up the issue that I have identified. If he is the person entitled to these proceeds then he should receive them. I propose to adjourn the matter to enable that to happen.
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Decision last updated: 23 October 2017
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