National Australia Bank Ltd v Cunningham - [2014] NSWSC 1095

Supreme Court

New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Cunningham [2014] NSWSC 1095
Hearing dates: 29/07/2014
Decision date: 29 August 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
(1) Order pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005, that the funds paid into Court by the second and third defendants (being Neil Cunningham and Paola Toppi) in the amount of $343,000, together with all accrued interest thereon, be paid out to the plaintiff forthwith.
(2) Order the second and third defendants to pay the plaintiff's costs of the Motion.

Catchwords: PROCEDURE - civil - funds paid into Court in course of proceedings, together with accrued interest, to be paid to plaintiff; application for - Uniform Civil Procedure Rules; r 41.3 - possession proceedings initiated by plaintiff - funds paid into Court pursuant to Court Orders in possession proceedings to enable settlement of the sale of property to occur - paid on account of reasonable estimated future costs of plaintiff - defendants intended to commence proceedings against the plaintiff - proceedings instead commenced against receivers appointed by plaintiff - receivership proceedings - acknowledgment in receivership proceedings that the monies were held for broader purpose - plaintiff remained liable for receivers' costs - whether terms of acknowledgment are sufficiently clear to enable the Court to make the order sought - COSTS - general rule that costs follow the event
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: National Australia Bank Ltd v Lavin [2011] NSWSC 440
Category: Principal judgment
Parties: National Australia Bank (P)
Neil Cunningham (D2)
Paola Toppi (D3)
Representation: Counsel:
D G Price (P)
P Beazley (D2, D3)
Solicitors:
Dibbs Barker (P)
Beazley Singleton Lawyers (D2, D3)

File Number(s): 2010/150034

Judgment

On 25 June 2014, the National Australia Bank Ltd ("the Bank"), the plaintiff in the proceedings, applied for the following orders:

"1. The funds paid into Court by the Second and Third Defendants (being Neil Cunningham and Paola Toppi), pursuant to the orders made by Her Honour Justice Schmidt on 17 May 2011 in the amount of $343,000, be paid to the Plaintiff forthwith.

2. The Second and Third Defendants pay the plaintiff's costs of the motion."

The respondents to this Motion, Mr Cunningham and Ms Toppi, opposed the order.

For the reasons which are set out below, I have decided to grant the Motion and make orders reflecting those which were sought.

History of the Proceedings

On 14 June 2010, the Bank commenced these proceedings ("the possession proceedings") against Ms Dolores Lavin, three companies, and, as well, Mr Cunningham and Ms Toppi, ("the respondents"), who were named as the second and third defendants.

The Statement of Claim claimed a monetary judgment for a sum a little under $8M against each of the defendants, including the respondents. As well, the Statement of Claim sought an order for judgment for the possession of a property owned by the respondents at 2/1A Wylde Street, Potts Point, New South Wales ("the Wylde Street property").

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: [2014] NSWSC 1095
Decision Date: 29 August 2014

CaseChat Overview and Summary

In the Federal Court of Australia, National Australia Bank Ltd brought a claim against Cunningham and others for recovery of funds paid into court during possession proceedings. The funds were paid into court to facilitate the sale of a property, which had been subject to a mortgage held by the bank. The defendants intended to commence proceedings against the bank but instead commenced proceedings against receivers appointed by the bank. The bank argued that the terms of the acknowledgment in the receivership proceedings were sufficiently clear to enable the court to make the order sought, and that the funds should be paid to the bank with accrued interest.

The legal issues before the court included whether the terms of the acknowledgment in the receivership proceedings were clear enough to enable the court to make the order sought, and whether the bank was still liable for the receivers' costs. The court considered the relevant provisions of the Uniform Civil Procedure Rules and the general principle that costs follow the event. The court also considered the broader purpose for which the monies were held and whether the bank remained liable for the receivers' costs.

The court found that the terms of the acknowledgment in the receivership proceedings were sufficiently clear to enable the court to make the order sought. The court held that the funds paid into court, together with accrued interest, should be paid to the bank. The court also found that the bank remained liable for the receivers' costs. The court noted that the general principle that costs follow the event did not apply in this case, as the funds were paid into court for a specific purpose and the bank remained liable for the receivers' costs.

The court ordered that the funds paid into court, together with accrued interest, be paid to the bank. The court also ordered that the bank remain liable for the receivers' costs. The defendants were ordered to pay the bank's costs of the application.

Orders