Marcucci Bros v Subert and Tomlinson - [2020] VSC 33

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S ECI 2019 05236

IN THE MATTER of an application by the Plaintiff, Marcucci Bros Pty Ltd ACN 121 350 829 for orders for payment of residue of purchase money paid into Court by Mortgagee who exercised its power of sale under provisions so far as they are applicable under s 77 of the Transfer of Land Act 1958 and s 69 of the Trustee Act 1958. The plaintiff had Warrant of Seizure and Sale registration dealing number AS363407N recorded on title on 18 July 2019 as a process of execution under s 52 of the Transfer of Land Act 1958.

BETWEEN:

MARCUCCI BROS PTY LTD (ACN 121 350 829)	Plaintiff
v
JOSIP SUBERT and DELIA LOUISE TOMLINSON	Defendant

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JUDGE:	Caporale JR
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2019; 28 January 2020
DATE OF JUDGMENT:	10 February 2020
CASE MAY BE CITED AS:	Marcucci Bros v Subert & Tomlinson
MEDIUM NEUTRAL CITATION:	[2020] VSC 33

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APPLICATION FOR FUNDS IN COURT – Allocation of surplus funds paid into Court following mortgagee sale – House belonged to joint proprietors and debt to judgment creditor exceeds amounts held in Court – Re Commonwealth Bank of Australia [2009] NSWSC 81; Pepper Finance Corporation Limited v Maloney [2013] NSWSC 890 considered – Transfer of Land Act 1958; Trustee Act 1958; Supreme Court (General Civil Procedure) Rules 2015 applied – held lodging a writ as an ordinary unsecured creditor is insufficient – Need for judgment creditor to possess a beneficial interest in the fund – Money in control of the Court may be the subject of execution – Plaintiff entitled to levy execution on funds held in Court – Joint tenant with no judgment debt against her entitled to half of monies paid into Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Sanger	MacRae Lawyers
For the first named Defendant Mr Subert	No appearance
For the second named Defendant Mr Tomlinson	In person (on 28 January 2020 only)

JUDICIAL REGISTRAR:

Background

On 29 October 2015 the plaintiff obtained a judgment debt from the Magistrates’ Court of Victoria against Josip Subert. The order was subsequently registered in this Court and on 26 June 2019 the Court issued a Warrant of Seizure and Sale (Warrant). The Warrant directed that the Sheriff levy on the property of Mr Subert and recorded that his last known address, and at which it is believed the property of Mr Subert may be found, is 16 Old Warburton Highway, Seville East, Victoria (the Property).

The Warrant was lodged on the title of the Property as is required under s 52 of the Transfer of Land Act 1958 (the TL Act).

The Property was owned by Mr Subert and Delia Louise Tomlinson as joint proprietors.

As at 26 June 2019, the Commonwealth Bank of Australia (CBA) was in possession of…

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

Case: [2020] VSC 33
Decision Date: 10 February 2020

CaseChat Overview and Summary

The case of Marcucci Bros v Subert and Tomlinson involved the allocation of surplus funds paid into the Court following the sale of a mortgaged property. The property in question was held by joint proprietors, and the debt owed to the judgment creditor exceeded the amounts held in Court. The primary legal issues were the conditions under which a judgment creditor could claim funds paid into Court and the extent to which these funds could be levied upon by the creditor. The case also addressed the statutory framework governing these matters, including the Transfer of Land Act 1958, the Trustee Act 1958, and the Supreme Court (General Civil Procedure) Rules 2015.

The court examined the principles established in previous cases such as Re Commonwealth Bank of Australia [2009] NSWSC 81 and Pepper Finance Corporation Limited v Maloney [2013] NSWSC 890. It concluded that simply lodging a writ as an ordinary unsecured creditor was not sufficient to entitle the creditor to claim the funds. Instead, the judgment creditor needed to possess a beneficial interest in the fund. Furthermore, the court held that money in the control of the Court could be the subject of execution. As a result, the plaintiff was entitled to levy execution on the funds held in Court. Additionally, the court ruled that the joint tenant, who did not have a judgment debt against her, was entitled to half of the monies paid into Court.

In light of the above, the court ordered that the plaintiff could execute on the funds held by the Court to satisfy the judgment debt, while ensuring that the joint tenant received her entitled share of the remaining funds. This decision provided clarity on the conditions under which a judgment creditor can claim funds paid into Court and the extent to which these funds can be levied upon by the creditor. It also highlighted the importance of possessing a beneficial interest in the fund for the judgment creditor to make such claims.

Orders