Lunt v WRS Pacific Pty Ltd

[2002] WASC 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LUNT -v- WRS PACIFIC PTY LTD [2002] WASC 27

CORAM:   MASTER BREDMEYER

HEARD:   20 FEBRUARY 2001

DELIVERED          :   21 FEBRUARY 2002

FILE NO/S:   CIV 2289 of 2000

BETWEEN:   WILLIAM TREVOR LUNT

Plaintiff

AND

WRS PACIFIC PTY LTD (ACN 009 248 999)
Defendant

LUNT FAMILY TRUST
Claimant

Catchwords:

Interpleader summons - Ownership of chattels

Legislation:

Nil

Result:

Application allowed

Category:    B

Representation:

Counsel:

Plaintiff:     Mr B W Duckham

Defendant:     Mr R Guerrini

Claimant:     Mr B W Duckham

Solicitors:

Plaintiff:     B W Duckham & Co

Defendant:     Camillo D'Angelo & Co

Claimant:     B W Duckham & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. MASTER BREDMEYER:  The plaintiff was ordered to pay costs to the defendant.  Those costs have been taxed at $9,813.88.  They have not been paid.  A writ of fi fa has issued under which the sheriff has seized certain assets found in the plaintiff's house at 3 Crocker Place, Karrinyup.  They include a grandfather clock, a nine‑piece dining suite, a two‑piece lounge suite, a Kelvinator two‑door fridge, a Samsung microwave, etcetera.  The plaintiff claims that these goods are not owned by him, but by the Lunt Family Trust.  The sheriff has filed an interpleader summons and Mr Duckham for the claimant has filed a number of affidavits in support of the plaintiff's assertion that these goods are owned by the trust.  As must often be the case, the defendant has not been able to file any affidavit evidence in opposition.

2. Although a signed, stamped copy of the 1994 trust deed, creating the trust, has not been produced, I consider that there is a Lunt Family Trust.  I infer that from the 1996 change of trustee deed which is signed and stamped.  That deed recites the earlier deed, which is good evidence of the existence of the earlier deed.  I also accept the evidence of Mr Bond, a chartered accountant, that he was the original trustee and signed the original deed, and has seen a stamped copy.

3. I also accept the affidavit evidence of Mr Bond and Mr Lunt that these chattels are owned by the trust.  They appear to have been originally owned by Mr and Mrs Lunt and transferred to the trust in 1994. 

4. I am satisfied that the chattels seized are the property of the trust.  I will order the sheriff to release the assets.

5. I do not blame the defendant for having contested this interpleader summons.  How was it to know that the chattels found in Mr Lunt's house were owned by his family trust?  Further, there is no particular reason why the defendant should have withdrawn its claim to ownership at an earlier stage when the 1994 trust deed could not be found.  In the circumstances, there will be no order as to costs.