Palmer v Orix Australia Corp Ltd - [2006] NSWSC 1208

CITATION: Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208

HEARING DATE(S): 14 September 2006

JURISDICTION: Equity Division
Duty List

JUDGMENT 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 27

PARTIES: 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…

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: [2006] NSWSC 1208
Decision Date: 14/09/2006

CaseChat Overview and Summary

The case involved a dispute between the plaintiff, Palmer, and the defendant, Orix Australia Corp Ltd, regarding payments made into and out of court. Palmer had paid funds into court without initiating proceedings. Subsequently, Orix Australia filed a summons for payment out. The court was required to determine whether the summons for payment out should be filed with the matter number allocated to the affidavit on payment in, and whether an accountant's certificate and evidence of the absence of stop orders were necessary. Additionally, the court needed to decide on the procedural issue of removing a defendant from the proceedings where the defendant could not be served and did not appear to have a claim.

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.

Orders