In the matter of Part IV Trustee Act 1925 (No 2)

[2017] NSWSC 1449

Supreme Court

New South Wales

Medium Neutral Citation:	In the matter of Part IV Trustee Act 1925 (No 2) [2017] NSWSC 1449
Hearing dates:	In Chambers
Date of orders:	24 October 2017
Decision date:	24 October 2017
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Under r 41.11 Uniform Civil Procedure Rules 2005 (NSW), I direct that upon the receipt of an authority to receive duly signed by Murray William Priestley, the whole of the fund paid into Court and interest thereon be paid out to his solicitor, Frank Mathey, who shall be liable to account to the applicant for the monies according to law;  (2)   Vacate the further listing of 9:30am, 27 October 2017.
Catchwords:	CIVIL PROCEDURE – unclaimed funds – application under UCPR r 41.10 – where mortgagee directed surplus funds to Court – held that identity of mortgagor verified
Legislation Cited:	Trustee Act 1925 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	In the matter of Part IV Trustee Act 1925 [2017] NSWSC 1429
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

judgment

1. As I explained in my earlier judgment ([2017] NSWSC 1429), the applicant has applied for the payment to him of unclaimed funds paid into court by St George Bank under Trustee Act 1925 (NSW) as surplus of the proceeds of a mortgagee sale which took place on 1 March 1991.

2. My previous reasons explained that I was not satisfied that the applicant, Mr Priestley, was the person entitled, particularly because of a discrepancy between the spelling of this surname and the surname of the mortgagor disclosed in the affidavit sworn on behalf of the bank on 22 August 1994. The spelling there was “Priestly”. I adjourned the matter to enable the applicant to put forward further evidence.

3. A second affidavit sworn on 18 October 2017 has now been filed. From reading that affidavit, I am now satisfied that the applicant, William Murray Priestley, is the person entitled to the funds in Court.

4. It is apparent from that affidavit and its annexures, that the spelling “Priestly” in the bank’s affidavit was mistaken. Annexure “A” to Mr Priestley’s affidavit is a copy of the now cancelled Certificate of Title Volume 776 Folio 127. The first schedule shows “Murray William Priestley” became the registered proprietor on 25 September 1985 by the registration of transfer B941522. The then St George Building Society Limited (as the bank was) was registered as first mortgagee. A copy of the transfer (Annexure “B”) dated 10 September 1995 shows the transferee as “William Murray Priestley”. The mortgage B941523 (Annexure “C”) names the mortgagor as “Murray William Priestley” and the transfer by mortgagee under power of sale Z532383K (Annexure “D”) names the mortgagor as “Murray William Priestley”.

5. Clearly the affidavit of the 22 August 1994 was affected by typographical error.

6. Moreover, Mr Priestley swears that he became the owner of the property, resided in it for a period of time, and later let it. He says “because of a combination of factors … I was unable to meet the due mortgage payments which lead to the St George Building Society Limited exercising its power of sale under the mortgage”.

7. I am satisfied Mr Priestley is the person entitled to the fund. Given the receipt of the additional affidavit, and as there is no contradictor, I directed my associate to indicate by email to the applicant’s solicitor, Mr Mathey, that I was prepared to deal with the matter in chambers without the need for him to appear which course he acquiesced in.

8. I make the following orders:

1. Under r 41.11 Uniform Civil Procedure Rules 2005 (NSW), I direct that upon the receipt of an authority to receive duly signed by Murray William Priestley, the whole of the fund paid into Court and interest thereon be paid out to his solicitor, Frank Mathey, who shall be liable to account to the applicant for the monies according to law;

2. Vacate the further listing of 9:30am, 27 October 2017.

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Decision last updated: 25 October 2017