La Trobe Capital and Mortgage Corporation Limited [No 2]

[2009] NSWSC 1372

CITATION:	La Trobe Capital & Mortgage Corporation Limited [No 2] [2009] NSWSC 1372
HEARING DATE(S):	30 October & 26 November 2009
JUDGMENT DATE :	9 December 2009
JURISDICTION:	Equity
JUDGMENT OF:	Slattery J at 1
DECISION:	No order made until further evidence provided by both parties.
CATCHWORDS:	PROCEDURE - funds in court - application for payment of funds out of court - two applicants - matters to be established - some matters not yet made out - no order for payment made
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Land Transfer Act 1952 (NZ) s 104 Real Property Act 1900 (NSW) s 58, s 74 Trustee Act 1925 (NSW) s 95
CATEGORY:	Principal judgment
CASES CITED:	AVCO Financial Services v Commonwealth Bank of Australia (1989) 17 NSWLR 679 Bank of NSW v Adams (1982) 2 NSWLR 659 Beeby v Official Assignee of Pickering and Pickering [1953] NZLR 832 Hope v Hope (1937) 1 NZLR 582 Wight v Haberdan Pty Limited (1984) 2 NSWLR 28
PARTIES:	First Plaintiff: La Trobe Capital Second Plaintiff: Mortgage Corporation Limited [No 2]
FILE NUMBER(S):	SC 3888/09
COUNSEL:	First Plaintiff: Mr Ross (Self Represented) Second Plaintiff: Mr Wilson (Self Represented)
SOLICITORS:	First Plaintiff: Mr Ross (Self Represented) Second Plaintiff: Mr Wilson (Self Represented)

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

SLATTERY J

WEDNESDAY 9 DECEMBER 2009

3889/09 LA TROBE CAPITAL & MORTGAGE CORPORATION LIMITED [NO 2]

JUDGMENT

1 HIS HONOUR: Union Fidelity Capital Funding Pty Limited (“Union Fidelity”) seeks the payment out of court to it of the sum of $5,199.77. Union Fidelity claims that sum from a larger fund paid into court by La Trobe Capital and Mortgage Australia Ltd (“La Trobe”) the plaintiff in these proceedings. La Trobe was the mortgagee of a property known as ”Caawarie” in Orange Road Forbes New South Wales (“the property”). The mortgagor, Spurlet International Pty Limited (“Spurlet”) conducted an orchard business from the property. La Trobe exercised a power of sale over the property and completed a sale on 25 June 2009. La Trobe paid the net settlement proceeds of $12,709.82 into court under s 95 of the Trustee Act 1925 (NSW) (“the Act”).

2 This matter last came before me on 8 October 2009. In a judgment of that date La Trobe Capital [2009] NSWSC 1118 I concluded that Union Fidelity had not yet advanced sufficient evidence to prove that the sum of $5,199.77 should be paid out to it from the larger net settlement proceeds of $12,709.82. The Court identified in that earlier judgment the several ways in which the evidence relied upon by Union Fidelity was deficient. In summary there were three problems with Union Fidelity’s evidence.

(a) Union Fidelity had failed to prove whether there were any competing claimants to the funds in court that Union Fidelity seeks to have paid out. As the Court stated at [10] of the first judgment

“It is necessary for that party to prove that all potential claimants to the funds which are sought to be dealt with by the Court have been properly notified. Otherwise there is a risk of incorrect payments being made.”


The need to prove the identity of other claimants, the nature of their claims and whether proper notice has been given to them is explained further at [15] and [16] of the first judgment.

(b) Union Fidelity must also establish that it has a beneficial interest in the funds in court. The inadequacies in the current evidence in relation to this issue are discussed at [11]-[14] of the first judgment.

(c) At the time of my first judgment I was not satisfied that Union Fidelity had given adequate notice of its application to Spurlet. The Court made specific directions for Union Fidelity to serve the notice of motion and evidence together with a copy of my judgment of 8 October 2009 at the registered office of Spurlet at the residential address of the sole director of Spurlet: see the first judgment at [19].

3 On 8 October 2009 I adjourned the proceedings for further hearing to 30 October 2009. By then Union Fidelity had made substantial progress in filling in the gaps identified in the earlier judgment. Union Fidelity’s work resulted in an appearance by Mortgages Galore Pty Limited by its director Mr Kenneth John Wilson. The consequences of Mortgages Galore’s appearance are discussed below.

4 On 30 October 2009 the proceedings were adjourned for hearing in the duty list on 26 November 2009 on which date I envisaged that I might be able to give judgment. The parties appeared before me on Thursday 26 November 2009 at which time I requested short further submissions and a guide to the supplementary evidence from Mr Ross. That was provided the same day and I reserved judgment.

5 My reasons below deal with the matters that Union Fidelity must still prove. Then I consider the issues raised by Mortgages Galore.

Mr Ross’ Authority to Appear

6 I granted Mr Ross provisional leave to appear on behalf of Union Fidelity on 8 October 2009. There was no evidence on that occasion that he was a director of Union Fidelity or that he had any authority to appear on behalf of the company. The Court permitted him to substantiate his authority to act on behalf of Union Fidelity by oral evidence.

7 Mr Ross has now provided an Australian Securities and Investment Commission (ASIC) company extract showing that as at 10 October 2009 that he, Bernard Hugh Danby Ross, was a director of Union Fidelity.

8 Mr Ross’ authority was completed by evidence that the directors of Union Fidelity resolved on 5 November 2007 that Bernard Hugh Danby Ross was authorised to appear on the company’s behalf in any court of competent jurisdiction in Australia, subject to the court concerned granting leave to appear.

9 Given the small amount of money in issue in this matter I will permit Bernard Hugh Danby Ross to continue to represent Union Fidelity on this application. This will facilitate the just quick and cheap resolution of the real issues in these proceedings: s 56 Civil Procedure Act 2005 (NSW).

10 I granted leave to Union Fidelity to file in Court three affidavits of Bernard Hugh Danby Ross each of which is sworn on 22 October 2009. The affidavits are distinguished respectively by the mark “A”, “B” and “C”. Union Fidelity read those three affidavits on this application.

Service on Spurlet

11 Union Fidelity has served the secretary and sole director of Spurlet, Mr Viloun Keomoumgkhoun. Union Fidelity has adduced evidence that it attempted to serve Union Fidelity’s notice of motion and all its affidavit evidence together with a copy of my judgment of 8 October 2009 at the registered office of Spurlet on or about 21 October 2009.

12 Union Fidelity has also proved that it sent the same material by registered post to Mr Viloun Keomoumgkhoun on or about 21 October 2009. Union Fidelity also forwarded the same material by registered post to Mr Wilson at Mortgages Galore. Notwithstanding this service no communication has been received either by Union Fidelity or by the Court from Spurlet.

13 The attempts Mr Ross made to effect service on Spurlet were as complete as could be expected. He confirmed through an ASIC search made on 22 October 2009 that Spurlet’s registered office was still at Level 6, 143 York Street, Sydney. He attended there at 11.35am on 22 October ready to effect service. Mr Ross found that the area on Level 6 where he had previously attended on 4 August 2009 was now a vacant office. Mr Ross unsuccessfully inquired of the building supervisor as to Spurlet’s whereabouts but received no information that led him to Spurlet. Thus Mr Ross was unable to effect service at the registered office. Spurlet, appears not to have supplied accurate up-to-date information to ASIC.

14 Nevertheless Mr Ross has posted process to the residential address of the sole director of Spurlet, which is sufficient in the circumstances to bring the process to the attention of the company. Mr Viloun Keomoumgkhoun’s residential address on the 22 October 2009 ASIC search is still at Quakers Hill New South Wales 2763, the address that the Court directed Mr Ross to serve the sole director on 8 October 2009. No postal articles were returned to Mr Ross from this address. By the means directed Union Fidelity has given adequate notice of its motion in these proceedings to Spurlet.

An Equitable Interest in the Property

15 On 8 October 2009 Union Fidelity had not established that it was more than an unsecured creditor of Spurlet. On the material provided on the last occasion even Union Fidelity’s status as a creditor of Spurlet was doubtful.

16 Union Fidelity also has a charge over the property. Union Fidelity can also establish the amount due to it under that charge. Analysis of a number of documents and events is required to establish both these matters. The following is to be inferred from the affidavit material and documents in evidence.

17 Union Fidelity conducts a business as a finance facilitator from premises in George Street Sydney NSW. It specialises in the business of sourcing non conforming commercial loans for borrowers who do not meet the lending criteria of banks and other prime lenders. Union Fidelity’s borrowers usually have difficulty funding loans from trading banks or similar financial institutions.

18 Union Fidelity has had a long standing commercial relationship with the plaintiff, La Trobe, and has been a loan originator with La Trobe since June 2002. Spurlet made a “quick application” on 30 November 2007 to Union Fidelity for $375,000 to refinance an existing loan that Spurlet had with La Trobe. Security for the existing loan was the property in Orange Road Forbes NSW. In the “quick application” of 30 November 2007 the subject property was said to have an estimated value of $700,000.

19 Once Union Fidelity had received the “quick application” from Spurlet it completed a “New Proposal Application” form for $375,000 the amount requested. Union Fidelity provided the “New Proposal Application” form for $375,000 to funders that Union Fidelity judged would be willing to consider Spurlet’s non conforming commercial loan for a two to three year period. The “New Proposal Application” was to refinance an existing loan to La Trobe for $270,000 and provide working capital of $105,000, making the total requested borrowings, the sum of $375,000.

20 Despite Spurlet’s request for $375,000 Union Fidelity issued a “Prospective Approval Indication” form to Spurlet on 13 November 2007 for a loan for the lower of either $270,000 or 50% of a formal valuation of the property. Spurlet had not successfully sourced a loan for $375,000 to provide it with some working capital. At least Spurlet had a proposal to refinance its La Trobe facility which was expiring.

21 Importantly for the present issues, Spurlet accepted Union Fidelity’s “Prospective Approval Indication” in writing on 14 December 2007 and paid the applicable processing fee of $770.00 into Union Fidelity’s bank account on 15 December 2007. Union Fidelity’s “Prospective Approval Indication” form requires acceptance by signature in a number of places. Not all the places for signature on the form were executed by Mr Viloun Keomoumgkhoun. Nevertheless his intention to accept the terms of Union Fidelity’s “Prospective Approval Indication” on behalf of Spurlet is clear. Mr Viloun Keomoumgkhoun’s signature on this acceptance on 14 December 2007 closely resembles the signature on other documents signed by him at that time. Furthermore, other contemporaneous documents that have been supplied show Mr Viloun Keomoumgkhoun dealing on behalf of Spurlet in the loan negotiations with Union Fidelity.

22 Union Fidelity’s “Prospective Approval Indication” form advised that a potential lender had given a prospective approval indication to Union Fidelity on certain terms and conditions. It is not necessary to set out all the terms and conditions. It is sufficient that on the form the borrower was identified as Spurlet. The purpose of the loan was described as “equity take out and refinance from investment property”. The security was the property and the facility amount was $270,000. The term of the loan offered by the potential lender was one year.

23 The “Prospective Approval Indication” form authorised the lender to pay Union Fidelity certain amounts from settlement proceeds upon the refinance as follows:

Brokerage fee $3,267.20

Settlement fee $660.00

Disbursements $nil

Total payment $3,927.00

24 Notwithstanding the authority to pay these sums “from settlement proceeds” the loan conditions bound the borrower to payment of the brokerage fee, the settlement fee and the relevant disbursements regardless of whether the loan proceeded or not. The same term created this obligation and charged the subject land with repayment of the obligation in the event of default in the payment of brokerage, settlement fees, or disbursements. The provision was the following:

“The Spurlet Charge
It is acknowledged and agreed by the Borrower that the Brokerage Fee and Settlement Fee and disbursements are payable regardless of whether the loan proceeds or not. In the event of default of payment of brokerage fee/settlement fee and/or disbursements by the Borrower to Union Fidelity, the Borrower hereby charges the land in Certificate(s) of Title reference, Cawarrie Orange Road FORBES NSW 2871 DP 170 987 and DP 303 597 (“the land”) of which the Borrower is the registered proprietor / registered owner and all the estate and interest of the Borrower of that land and all other land of which the Borrower is currently and in the future the registered proprietor / registered owner with the payment to Union Fidelity of all monies which are due and payable to Union Fidelity. The Borrower authorises the lodgement of a caveat in the event of default.”

25 The charge operates upon default of payment of the fees and disbursements. It relevantly charges the property with the payment to Union Fidelity of “all monies which are due and payable to Union Fidelity”. The monies subject to the charge extended beyond the amount of the initial fees and disbursements to “all monies which are due and payable to Union Fidelity”. There were other disbursements in the present case as the calculation of the final amount due below shows.

26 Spurlet’s acceptance of the terms of the Union Fidelity “Prospective Approval Indication” form was distinct from Spurlet’s acceptance of the offer of finance of $270,000 from the prospective lender, Stacks Managed Investments Limited. Spurlet accepted the lender’s offer on 19 December 2007 in writing signed by Mr Viloun Keomoumgkhoun accompanied by a payment of $1,540.00 to Stacks.

27 Although these agreements were in place with the mortgage broker and lender before Christmas 2007, Spurlet failed to complete the refinancing. Union Fidelity’s internal notes of conversations with Mr Viloun Keomoumgkhoun between December 2007 and March 2008 showed that Union Fidelity sought further information, and further valuation fees from Spurlet. But Union Fidelity learned that Spurlet did not have the funds to settle.

28 Union Fidelity warned Mr Viloun Keomoumgkhoun that he was liable to pay $3,927.00 to Spurlet under the “Prospective Approval Indication” agreement whether or not the transaction proceeded. Union Fidelity requested payment by close of business on 2 April 2008.

29 The amount was not paid. Union Fidelity then filed a caveat over the property and added the fees for lodging the caveat of $340.00 as a disbursement bringing a total amount claimed to be owing to $4,267.00.

30 In June 2008 Union Fidelity attempted to ascertain whether Spurlet was going to settle by 30 June 2008. Spurlet did not complete by that date. On 4 August 2008 Spurlet issued a statement of claim in the Local Court for $4,471.00 being the previous total of $4,267.00 plus court filing fees and service fees of $204.00.

31 Union Fidelity served Local Court process on Spurlet and its registered office. On this occasion Mr Viloun Keomoumgkhoun was present and accepted service. On 3 December 2008 Mr Ross filed in the Local Court a “Notice of Motion - Default Judgment for Liquidated Claims” for the amount of $4,750.73 being the amount of $4,471.00 plus interest from 14 December 2007 to 31 August 2008 at the contractual rate of 10% provided for under the contract “260 days” being $279.73. Default judgment was entered for this amount on 19 September 2008.

32 In the end Spurlet was unable to refinance. Between October 2008 and April 2009 Mr Ross monitored La Trobe’s arrangement of the auction of the property. Hansons Lawyers, acting for La Trobe notified him on 12 June 2009 that the sale of the property would be settled on 25 June 2009. Mr Ross initially provided a form of withdrawal of caveat in escrow so that Union Fidelity could be paid out at settlement. The withdrawal of caveat by Union Fidelity was not necessary because s 74H(5)(d) Real Property Act 1900 (NSW) permits the Registrar General to record in the Register a dealing in the exercise of a power of sale conferred by a mortgage which is recorded in the Register before lodgement of the caveat. Mr Ross accepted the position that the withdrawal of the caveat was not necessary. La Trobe indicated that it proposed to pay the money into Court, as it later did. In his letter in reply of 12 June 2009 to La Trobe, Union Fidelity claimed $5,137.37 being the amount of the Local Court judgment of $4,750.73 plus interest up to and including 24 June 2009 (297 days of $386.57 making a total of $5137.37). Union Fidelity says that because of La Trobe’s exercise of legal rights as mortgagee Union Fidelity’s equitable rights protected by the caveat were deferred. It now seeks to exercise those rights against the funds in court by authorising payment out to Union Fidelity. Once Union Fidelity establishes a valid equitable charge over the property its right to the funds follows, as the reasoning in the next paragraph demonstrates.

33 Section 58 of the Real Property Act 1900 operates so as to make a first mortgagee a trustee for any purchase money in excess of that required to pay out the first mortgagee and the expenses of the sale: Bank of NSW v Adams (1982) 2 NSWLR 659 at 655 and on appeal (1984) 1 NSWLR 285 at 299. If a person has an equitable charge over land and that land is sold by a mortgagee, the equitable charge attaches to any surplus on the sale: Beeby v Official Assignee of Pickering and Pickering [1953] NZLR 832. The section does not abrogate the rights of mortgagees under unregistered mortgages but merely postpones them to those of mortgagees under registered mortgages and it does not vest the surplus from the mortgagee sale in the mortgagor free from all equity but is subject to them: Hope v Hope (1937) 1 NZLR 582 per Wilson J, considering the New Zealand Land Transfer Act 1952 s 104 which is in terms similar to s 58(3). Under the New Zealand legislation, and by similar reasoning the Real Property Act, the equitable charge on the land is converted on the sale of land to a charge on the proceeds: Hope v Hope (1937) 1 NZLR 582 at 583, and AVCO Financial Services v Commonwealth Bank of Australia (1989) 17 NSWLR 679 per Young J (as he then was). The application of these principles means that once Union Fidelity or Mortgages Galore establishes an equitable charge over the property for particular amounts each has a better title in equity to the funds in court than Spurlet. An order for payment out to them can then be made ahead of Spurlet.

34 On this evidence and in application of these principles I find that Union Fidelity has an equitable interest in the funds in court. I also find that in addition to the brokerage and settlement fee that other expenses associated with the entry of judgment either fall within “disbursements” in the charging clause or are monies which are “due and payable to Union Fidelity”. Spurlet has an entitlement in equity to the amount of the fund it claims.

35 It is now necessary to consider the question of any competing claims to the funds in court before payment out can be authorised.

Dealing with Competing Claims

36 Union Fidelity must prove whether or not there are any competing claimants to the funds in court. If there are other competing claimants they must be properly notified. The evidence shows there is only one other claimant in equity to the funds in court, Mortgages Galore. Mortgages Galore’s claim is dealt with in the next section of this judgment.

37 Union Fidelity’s evidence shows that the property is comprised of two parcels of land each of which is a separate folio of the Register. There are two caveats on each of those parcels of land. Union Fidelity lodged a caveat (Dealing number AD909767R) claiming the interest the subject of its present application on 23 April 2008. Mortgages Galore lodged the second caveat (Dealing number AE38951D) on 23 June 2008. There are no other caveats or encumbrances on the folios of the Register. Mr Ross searched the ASIC records for data in relation to Mortgages Galore. He found its sole director / company secretary to be Mr Kenneth John Wilson. Mr Ross communicated with Mr Wilson notifying him of the further hearing date of this matter on Friday 30 October 2009. Mr Ross served on him the motion and affidavit material in support of Spurlet’s application. Mortgages Galore has been adequately notified of Union Fidelity’s claim and has now attended to press its own claim over these funds in court.

38 The authorities suggest that a claimant should adduce evidence to support the inference that there are no other claimants on the fund: AVCO Financial Services v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 681E-G per Young J (as he then was). Affidavit evidence that the claimant does not believe that there are any other claimants would usually be sufficient. Union Fidelity has not yet provided such evidence and will need to do so before an order for payment of the funds out will be made.

Mortgages Galore

39 Mr Wilson sought my leave to appear on behalf of Mortgages Galore when the matter was before the Court on 30 October 2009. I granted him leave for the same reasons that I granted leave to Mr Ross to appear on behalf of Union Fidelity. As this section of the judgment explains, Mortgages Galore’s application is less advanced than Spurlet’s application. However the evidence on each application can support the other. Mortgages Galore’s application must still be treated as a separate application. Before I could order payment out to Mortgages Galore the matters under the subheadings below must be rectified.

Form of Application

40 Mortgages Galore has not filed a motion seeking payment out of the funds in court. It has merely sought to read the undated affidavit of Kenneth John Wilson which I gave leave to be filed on 30 October 2009. Mortgage Galore will need to file an appropriately crafted form of motion. Union Fidelity has already done this.

Service

41 Mortgages Galore must satisfy the same service requirements as Union Fidelity. Mortgages Galore must show that it has attempted to bring its application to the attention of Spurlet. Before an order for payment out of the funds in court can be made in Mortgages Galore’s favour, Mortgages Galore must demonstrate that it has served notice of its application and accompanying affidavits on Mr Viloun Keomoumgkhoun at his address at which service was directed for Union Fidelity. At the same time the Court will require current evidence as to whether Spurlet has updated the particulars of its registered office with ASIC.

42 I will not direct that Mortgages Galore attempt to serve Spurlet at the abandoned registered office. That would be pointless. If a new registered office has been notified to ASIC, service there will be required. Advertising is the only other way that notice of these applications might be brought to Spurlet’s attention. However that seems a diffuse and unnecessary course when there is no reason to believe that Mr Viloun Keomoumgkhoun has left the Quakers Hill address.

Equitable Claim

43 The events which ground Mortgages Galore’s equitable claim complement Union Fidelity’s dealings with Spurlet. Mortgages Galore conducted business as a mortgage lender specialising in the business of mortgage management and mortgage broking for home loans and other short term financing including bridging finance. Mr Wilson says that Mortgages Galore made a short term loan to Spurlet International which was advanced progressively over a period of time commencing on 25 February 2005 and peaking by February 2008 at $175,000.00. Spurlet probably used this funding as working capital. Mortgages Galore formalised its relationship with Spurlet in a deed of loan on 21 February 2008. Mortgages Galore was the lender under this loan deed and both Spurlet and Mr Viloun Keomoumgkhoun were the borrowers. The instrument was not properly sealed on behalf of Spurlet but the signature on the document on behalf of both borrowers strongly resembles that of Mr Viloun Keomoumgkhoun on Union Fidelity’s documents. I am prepared to infer it is Mr Viloun Keomoumgkhoun’s signature from that fact and from Mr Wilson’s affidavit evidence of his direct dealings with Mr Viloun Keomoumgkhoun.

44 The Mortgages Galore deed of loan with Spurlet and Mr Viloun Keomoumgkhoun contains the following charging provision:

“4. Concurrently with the execution of this deed of loan, the Borrowers must grant the Lender a registrable mortgage of the Borrower’s interest in the property at Lot 1 in DP 303597 & Lot 1 in DP 170987 including associated Water Licences being Folio Identifiers WAL8613 & WAL8614 for 303 megalitres per year and hereby confers upon the Lender the right to lodge a caveat on that property and any other real property the Borrowers may from time to time hold an interest as proprietor.”

45 The interest in the property that Mortgages Galore gains through clause 4 is less clearly defined than Union Fidelity’s equitable charge. There are two legal issues for Mortgages Galore. What is the effect of the words “the borrowers must grant the lender a registrable mortgage of the borrowers interest in the property”? No registrable mortgage was ever created. Given that Mortgages Galore made advances to Spurlet, these words should be probably construed as creating an equitable mortgage: Wight v Haberdan Pty Limited (1984) 2 NSWLR 280. Second both borrowers were required to grant the lender a registrable mortgage of “the borrowers’ interest in the property”. This probably creates an immediate charge over property in the name of one of one them, Spurlet. These are matters upon which I will need to be satisfied once adequate notice of Mortgages Galore’s application has been given to Spurlet.

46 Mortgages Galore has proved a series of final demands for payment against Spurlet and Mr Viloun Keomoumgkhoun in an amount alleged to be due of $76,000.00. The Mortgages Galore loan agreement with Spurlet does not contain a clause that says that the amount of Mortgages Galore’s final demand would be itself sufficient to prove the amount actually due by Spurlet. It will be necessary for Mortgages Galore to establish how this figure of $76,000 is calculated. It is significantly in excess of the amount available in court. Nevertheless, some evidence, possibly in the form of business records, is required to show what Mortgages Galore advanced and what was paid off the loan. Then the Court can be satisfied on an objective basis that there is still a significant sum outstanding.

47 Subject to the matters identified in this section that require further attention Mortgages Galore will have established an equitable interest in the funds in court.

Representation of Mortgages Galore

48 I gave leave for Mr Wilson to appear on behalf of Mortgages Galore to file materials on 30 October 2009. As was required of Mr Ross in relation to Union Fidelity, Mr Wilson must still demonstrate that Mortgages Galore has authorised him to appear on its behalf in relation to this application.

Competing Applications

49 Mortgages Galore must prove who are the other potential claimants against the funds in court and ensure that those persons are notified of its claim. Mortgages Galore cannot merely rely upon Union Fidelity’s notice to Spurlet of its application. The success of Mortgages Galore’s application depends upon facts and legal considerations different from Union Fidelity’s application. Its application must be separately notified to potential competing claimants. The first obvious competing claimant is Spurlet. Directions for service on Spurlet have already been discussed. Mortgages Galore has not advanced any evidence that it does not believe that there are any other claimants on the fund. This is a necessary step before the Court can conclude that there is no other claimant or that all other possible claimants have been notified and have not come in: AVCO Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 at 681E-G per Young J (as he then was).

Relative Priorities

50 There is no issue as to relative priorities as between Union Fidelity and Mortgages Galore. Mr Wilson’s affidavit (paragraph 18) requests payment out to Mortgages Galore from the remaining proceeds after full payment of the outstanding debt claimed by Union Fidelity. Mortgages Galore appears to accept that Union Fidelity’s claim has priority over Mortgages Galore’s claim. I will proceed on this basis unless Mr Wilson informs the Court otherwise.

Conclusion

51 As a result of these reasons both Union Fidelity and Mortgages Galore have matters of evidence to remedy before I will finally make orders for payment of the funds out of Court. I will not make orders for payment out to Union Fidelity until the Mortgages Galore evidence is complete. Mortgages Galore’s evidence of service will support Union Fidelity’s evidence and vice versa.

52 Both Union Fidelity and Mortgages Galore have leave to file such further evidence as this judgment indicates may be required to establish their application.

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