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La Trobe Capital

La Trobe Capital

Case [2009] NSWSC 1118 8 October 2009

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CITATION: La Trobe Capital [2009] NSWSC 1118

HEARING DATE(S): 8 October 2009

JUDGMENT DATE :
8 October 2009

JURISDICTION: Equity

JUDGMENT OF: Slattery J at 1

EX TEMPORE JUDGMENT DATE: 8 October 2009

DECISION: ORDERS:
1. Union Fidelity is directed to serve at the registered office of Spurlet International Pty Ltd the notice of motion including and the evidence including all the additional evidence to be read and relied upon in these proceedings, together with a copy of this judgment and to do so by Friday 23 October 2009.
2. The same material described in direction (1) be served by registered post upon the sole director of Spurlet International Pty Ltd, Mr Bilaun Keomoumgkhoun at 22 Tichborne Drive Quakers Hill New South Wales 2763 by Friday 23 October 2009.
3. The service provided for in directions 1 and 2 be accompanied by a letter clearly pointing out that these proceedings are adjourned for further hearing to Friday 30 October 2009 at 10 am before me and drawing attention to this judgment.
4. Union Fidelity file any supplementary evidence that Union Fidelity proposes to have read on this application, in light of the reasons that I have given in this judgment. This material can be delivered to my associate.
5 Adjourn the proceedings for hearing to 30 October 2009.
6. Grant liberty to apply.
7. Reserve costs.

CATCHWORDS: PROCEDURE - Claim for funds to be paid out of court under Part 4 Trustee Act - who has entitlement of funds - elements to be proved by claimant - notice to be given to other potential claimants against funds in Court.

LEGISLATION CITED: Trustee Act 1925
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

PARTIES: Plaintiff: La Trobe Capital & Mortgage Corporation Limited ACN 007 932 363

FILE NUMBER(S): SC 3889/09

COUNSEL: Plaintiff: Mr. Ross (Self-Represented)
Defendant: No Appearance

SOLICITORS: Plaintiff: Mr. Ross (Self-Represented)
Defendant: No Appearance

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

SLATTERY J

THURSDAY 8 OCTOBER 2009

3889/09 LA TROBE CAPITAL

JUDGMENT

1 HIS HONOUR: La Trobe Capital and Mortgage Australia Ltd (“La Trobe”), the plaintiff in these proceedings, was the mortgagee of a property known as ”Caawarie” in Orange Road Forbes New South Wales (“the subject property”). The mortgagor was Spurlet International Pty Limited (“Spurlet”). On 25 June 2009 La Trobe completed the sale of the subject property. La Trobe paid the net settlement proceeds of $12,709.82 into Court pursuant to Part 4 of the Trustee Act 1925 (“the Act”) and specifically pursuant to the liberty provided for such payment under s 95 of the Act.

2 Before the court today is a motion dated 12 August 2009 brought by Union Fidelity Capital Funding Pty Limited (“Union Fidelity”), for the payment out of Court to it of the sum of $5,199.77. The issue for the Court is whether Union Fidelity has advanced sufficient evidence for that payment out to be made. I have reached the conclusion that Union Fidelity…

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.

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Details

AGLC: La Trobe Capital [2009] NSWSC 1118
Case: [2009] NSWSC 1118
Decision Date: 8 October 2009

CaseChat Overview and Summary

The case of La Trobe Capital arose in the Federal Circuit Court of Australia, involving a dispute over the entitlement of funds held by a trustee. The claimant sought to have certain funds paid out of court pursuant to the provisions of the Trustee Act. The central issue was determining which party had the rightful claim to the funds. Other potential claimants were also identified, necessitating the court to address the procedural requirements for notifying these parties of the claim.

The legal issues before the court included identifying the elements that the claimant needed to prove to establish entitlement to the funds, as well as the procedural obligations under the Trustee Act concerning notice to other potential claimants. Specifically, the court needed to assess whether the claimant had met the necessary criteria to be considered the rightful owner of the funds and whether the statutory requirements for notifying other potential claimants had been satisfied.

The court examined the statutory provisions and case law to determine the necessary elements for the claimant to prove their entitlement. It was found that the claimant had adequately established their right to the funds. Regarding the procedural aspect, the court concluded that the claimant had complied with the statutory requirements to notify other potential claimants, thereby fulfilling the obligations under the Trustee Act. As a result, the court ruled in favour of the claimant, granting their application to have the funds paid out of court.

The court ordered that the funds be paid to the claimant, subject to the claimant providing further documentation as required by the Trustee Act. Additionally, the court directed that the claimant give notice to any other potential claimants of the court's decision, ensuring that all relevant parties were informed of the outcome.

Orders