Murray, L.o.a. v Macquarie Bank Ltd

[1992] FCA 252

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JUDGMENT No. zs.2 .&Xw

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	No. QG159 of 1990
GENERAL DIVISION

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM CARLE

Second Respondent

AND BETWEEN: THE MACOUARIE BANK LIMITED

Cross-A~~licant

AND:

First Cross-Respondent

AND:  JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN: JOHN ALEXANDER BAKER

Cross-Applicant

AND:  THE MACOUARIE BANK LIMITED

First Cross-Respondent

11 MAY 1992 AND : RAYMOND WILLIAM C m E

Second Cross-Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Spender J.

DATE OF ORDER:	15 Aprll 1992
WHERE MADE:	Brisbane
NOTE :	Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.

THE COURT ORDERS THAT:

1.    The first respondent/cross-applicant, The Macquarie Bank Limited, be granted leave to withdraw moneys brought into Court in the sum of $60,000.00 pursuant to 0. 23 r. 9 of the Federal Court Rules.

2.    Costs of the motion filed on 6 April 1992, including reserved costs, be the costs of the first cross- respondent, Ms. Murray, and the second cross-respondent,

Mr. Baker, in the principal proceedings.

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	1 No. QG159 of 1990
GENERAL DIVISION	)

BETWEEN: LYNNE ORELLE ANGELA MURRAY

Applicant

AND: THE MACOUARIE BANK LIMITED

First Respondent

AND: RAYMOND WILLIAM C m E

Second Respondent

AND BETWEEN: THE MACOUARIE BANK LIMITED

Cross-Applicant

AND: LYNNE ORELLE ANGELA MURRAY

First Cross-Respondent

AND: JOHN ALEXANDER BAKER

Second Cross-Respondent

AND BETWEEN: JOHN ALEXANDER BAKER

Cross-Applicant

AND: THE MACOUARIE BANK LIMITED

First Cross-Respondent

AND: RAYMOND WILLIAM CARLE

Second Cross-Respondent

CORAM:	Spender J.
PLACE :	Brisbane
m:	15 April 1992

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of motion by Macquarie Bank Ltd ('the

Bank' ) seeking leave pursuant to 0. 23 r. 9 of the Federal Court

Rules to withdraw moneys brought into court.

The material concerning the payment in is sparse, but it
appears that on 26 November 1991 the Bank paid into court

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pursuant to 0. 2 3 a nominated sum in satisfaction of both the applicant, Lynne Orelle Angela Murrayfs claim and the cross- claimant, John Alexander Baker's cross-claim. There was no allotment made of the sum paid in in respect of MS Murray's claim and M r Baker's cross-claim.

I note the provisions of 0. 2 3 r. 7 in respect of the court's power to order the respondents specifically to allot money against the various causes of action, and file an amended notice of deposit accordingly, but in the circumstances of this case that does not resolve the matter and would serve no useful purpose.

At the time the money was paid in there was an undertaking by MS Murray to sell a unit on the North Coast. Since then MS Murray has been relieved fromthat undertaking and certain orders have been made in respect of payment of $235,000.00 to the Bank in exchange for a deed of priority.

Since that time, substantial interest obligations have

accrued, if the Bank's cross-claims are valid.

The circumstances in which the discretion conferred on the court by 0. 23 r. 9 should be exercised were discussed by Pincus J. in Caboolture Park Shoppinq Centre Ptv Ltd v. White Industries (Old) Ptv Ltd (1989) 90 ALR 589, and in particular at 593, where his Honour said:

" The mode o f t r ea tmen t o f payments i n t o c o u r t

which emerges from t h e c a s e s i s a s f o l l ows :

Whereas t h e r u l e s appear t o g i v e an u n f e t t e r e d

d i s c r e t i o n t o t h e c o u r t ( a s the passage i n

Wi l l i ams s u g g e s t s ) i t i s n o t t r u l y u n f e t t e r e d ;

t h e d i s c r e t i o n i s e x e r c i s e d on t h e b a s i s t h a t t h e

payment w i l l not be allowed t o be withdrawn ( e v e n

i f i t i s t o o l a t e , under t h e r u l e s , f o r t h e o t h e r

s i d e t o accep t i t ) u n l e s s i t i s seen t h a t the

payment i n was made by m i s t a k e , o r t h a t

c i rcums tances have changed i n some s i g n i f i c a n t

way o r o t h e r m a t t e r s o f t h a t k i n d ; t h e unsecured

c r e d i t o r s a r e , however, p r o t e c t e d t o a degree

because t h e payment i n may be t r e a t e d a s a

p re f e rence ; o r d i n a r i l y , once the money i s paid i n

t h e p l a i n t i f f o r a p p l i c a n t i s e n t i t l e d t o have i t

k e p t t h e r e u n t i l l i a b i l i t y i s e s t a b l i s h e d . "

Here there has been a significant change of circumstances, but the nature of the payment in is such that it is not capable of acceptance by either MS Murray or Mr Baker, and no useful order can be made with respect to allotment to remedy that situation. This is not a case, unlike those the subject of discussion in the Caboolture Park Case, where there is a contest between parties based on insolvency of the party paying in. Should judgment go against the Bank, there is no risk that it

will be unable to honour that judgment, so the need for a fund	against which to provide some security for the applicants does
not appear here.
In all the circumstances it seems to me that no useful purpose can be served by requiring the sum to remain in court. I grant leave pursuant to 0. 23 r. 9 of to the Bank in terms of
the notice of motion.

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I indicate that the parties, in particular MS Murray and the Bank, seriously ought consider whether a commercial compromise of the entire dispute between them might not yet be achieved, particularly having regard to the fact that ~t seems unlikely that MS Murray will be able to have the contract re-written on other than terms that she repay the principal sum borrowed and be liable for reasonable commercial interest on those sums from the date of borrowing.

It seems the only matter really in dispute is the proper interpretation of the guarantee document.

The order that I make as to costs is that the costs of the motion, including reserved costs, be MS Murray's and M r Baker's costs in the principal proceedings.

I certify that this and the preceding
three pages are a true copy of the
reasons for judgment herein of the

Honourable

Date: 15

Solicitor for the applicant in the

principal proceedings : Mr. K. Philp of Bennett &

Philp

Counsel for the first respondent

in the principal proceedings : Mr. G. A. Thompson

instructed by	: Clarke & Kann
Counsel for the second cross-

respondent and cross -appl	ican t
in the principal proceedings	: Mr. P. J. Baston

instructed by	: N. R. Barbi
Date of hearing	: 15 April 1992