CITATION: Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208 HEARING DATE(S): 14 September 2006 JURISDICTION: Equity Division
Duty ListJUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 09/14/2006 CATCHWORDS: PAYMENTS INTO AND OUT OF COURT – Procedure – Where funds paid in without proceedings – Summons for payment out should be filed with matter number allocated to affidavit on payment in – – requirement for accountant’s certificate and evidence of absence of stop orders - Parties – Where defendant who cannot be served does not apparently have claim – order that defendant be removed as party LEGISLATION CITED: Supreme Court Rules 1970 (NSW), Pt 70 rr 12, 13
NSW Court Forms Precedents & Pleadings, [3440]CASES CITED: Re Howe; Ex parte Brett (1871) LR 6 Ch App 838, 841
Austin v Royal (1999) 47 NSWLR 27PARTIES: Christopher John Palmer (plaintiff)
Orix Australia Corporation Limited (first defendant)
Sam Peter Cassaniti (second defendant)
Michelle Hatzidimitrou (third defendant)
St George Bank Limited (fourth defendant)
Quest Enterprises (NSW) Pty Ltd (fifth defendant)FILE NUMBER(S): SC 4158/06; 1535/06 COUNSEL: Mr D Courtenay (sol) (plaintiff) SOLICITORS: Courtenay & Co (plaintiff)
Kemp Strang (fourth defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
BRERETON J
Thursday 14 September 2006
4158/06 Christopher John Palmer v Orix Australia Corporation Ltd & Ors
JUDGMENT (Ex tempore)
1 HIS HONOUR: On 22 February 2006, in proceedings 1535/05, St George Bank Ltd paid into Court a sum of $21,635.19, being the surplus proceeds of sale of a property situate at and known as Unit 3, 3 Kaleski Avenue, Moorebank in the State of New South Wales, being the land comprised in folio identifier 3/SB 39420, which St George had sold as mortgagee. In the affidavit which accompanied the payment in, the deponent indicated that claims on the surplus were being made by Orix Australia Corporation Ltd, Sam Peter Cassaniti, and Christopher John Palmer of O'Brien Partners. By summons filed in proceedings 4158/06 on 9 August 2006, Mr Palmer, as plaintiff, claims an order pursuant to Trustee Act s 98 (3) that the moneys paid into Court be paid out to him. The defendants are Orix as first defendant, Mr Cassaniti as second defendant, Michelle Hatzidimitriou as third defendant, St George Bank as fourth defendant and Quest Enterprises as fifth defendant. Mr Palmer is the liquidator of Hats Enterprises Pty Ltd, the registered proprietor of the subject property.
2 Caveats lodged by Orix and by Quest Enterprises Pty Ltd followed the St George mortgage on the title.
3 There is no evidence before me of the precise nature of the interest which Orix claimed, but on what I am informed by Mr Courtenay, solicitor, who appears for the liquidator but who has also acted for Orix in related proceedings, it appears to have been an interest in the nature of a charge under a finance lease facility. Quest Enterprises’ caveat described itself as “Quest Enterprises Pty Ltd trading as Cassaniti & Associates”, and…
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- Case
- [2006] NSWSC 1208
- Decision Date
CaseChat Overview and Summary
The court found that the summons for payment out should indeed be filed with the matter number allocated to the affidavit on payment in, as this would ensure that the proceedings were properly connected and transparent. The court also held that an accountant's certificate and evidence of the absence of stop orders were required to be filed to support the summons for payment out. This was to ensure that the funds could be properly accounted for and that there were no legal impediments to the payment out. Regarding the procedural issue, the court granted the application to remove the defendant as a party, as it was apparent that the defendant could not be served and did not have a claim.
The court's decision highlighted the importance of following proper procedures in handling payments into and out of court, and the necessity of providing appropriate documentation to support such applications. The court's ruling provided clarity on the procedural aspects of managing funds in court and reinforced the need for parties to adhere to the court's requirements. The final orders included the removal of the defendant as a party and the granting of the summons for payment out, subject to the filing of the accountant's certificate and evidence of the absence of stop orders.
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