Re an Application under the Court Funds Regulation 2009
[2024] QSC 117
•5 June 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Re an Application under the Court Funds Regulation 2009 [2024] QSC 117
PARTIES:
CHRISTOPHER DAVIES, DEPUTY REGISTRAR
(applicant)
FILE NO:
3579 of 2024
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
5 June 2024
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Davis J
ORDER:
1. The balance of the monies standing to the credit of the account in the Supreme Court being items 1, 2, 4, 5, 6 and 10 in the List of Accounts prepared by the Registrar pursuant to regulation 30(1) of the Court Funds Regulation 2009, as appears below, and which have not been disposed of, together with accrued interest, and less costs of advertising be transferred to the Consolidated Fund.
Title of Cause or Matter When Lodged Amount held (Interest calculated to end February 2024) 1. BS 2539/04 – (Applicant) AUSTRALIAN KARATE FEDERATION (QLD) INC and (Respondent) AUSTRALIAN KARATE FEDERATION INCORPORATED 22 March 2004 $15,502.71 2. BS 3849/16 – (First Applicant) QNI RESOURCES PTY LTD ABN 14 504 117 921 and (Second Applicant) QNI METALS PTY LTD ABN 56 066 656 175 and (Third Applicant) QUEENSLAND NICKEL SALES PTY LTD ABN 15 009 872 566 and (First Respondent) JOHN PARK and (Second Respondent) STEFAN DOPKING and (Third Respondent) KELLY-ANNE TRENFIELD and (Fourth Respondent) QUENTIN OLDE and (Fifth Respondent) QUEENSLAND NICKEL PTY LTD (ADMINISTRATORS APPOINTED) ABN 85 009 842 068 09 January 2017 $99,048.36 4. BS 4386/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and (First Respondent) THRICE PTY LTD ACN 136 842 647 TRADING AS KEY RESTAURANT MALENY and (Second Respondent) LUKE NORMAN BUTLER and (Third Respondent) SIMONE AYELE ARABELLA BUTLER 03 May 2017 $622.39 5. BS 8128/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 (Respondent) THE OFFICIAL TRUSTEE IN BANKRUPTCY IN ITS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF TERRANCE MICHAEL GILLAN (A BANKRUPT) AND TANIA MAREE GILLAN (A BANKRUPT) 09 August 2017 $14,143.56 6. BS 4943/17 (Applicant) ING BANK (AUSTRALIA) LIMITED ABN 24 000 893 292 and (First Respondent) ELTON DUANE CONNORS and (Second Respondent) REBECCA AMY ROSE KATHLEEN HICKS (A BANKRUPT) 17 May 2017 $15,237.91 10 BS 1720/16 (Plaintiff) PERPETUAL LIMITED ACN 000 431 827 and (Defendant) KERRY BOLTON 19 January 2018 $34,683.64 CATCHWORDS:
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION AND POWERS AND GENERALLY – OTHER MATTERS – REGISTRARS AND OTHER OFFICERS – where the Registrar prepared a list of accounts pursuant to the Court Funds Regulation 2009 – where the accounts were inactive – where the Registrar displayed the list in the registry – where the registrar advertised the list – where applications were made in relation to some items on the list for payment out orders – where some items were not the subject of an application for a payment out order – whether a consolidated fund order should be made
Court Funds Regulation 2009 (Qld), reg 4, reg 30, reg 31, reg 32, reg 33, Part 2, Part 3, Part 5, Part 6, Part 8, Part 9, Schedule
Application is made by Christopher Davies, Deputy Registrar of the Court, for an order that certain money be transferred to the Consolidated Fund pursuant to the Court Funds Regulation 2009 (the Regulation).[1]
[1]Court Funds Regulation 2009 reg 32.
Court Funds Regulation 2009
From time-to-time parties may be required to pay money or securities into Court. The Regulation regulates the handling of those funds and securities paid into Court.
By reg 4, money to be paid into Court must be paid to the Registrar and securities must be deposited with the Registrar. Various regulations then concern:
(a)the payment into Court of money or the deposit of securities;[2]
(b)the payment of interest;[3]
(c)the payment of money out of Court;[4]
(d)the effect of the death of a person entitled to money or securities in Court;[5] and
(e)the handling of inactive accounts.[6]
[2]Part 2.
[3]Part 3 and Part 5.
[4]Part 6.
[5]Part 8.
[6]Part 9.
Part 9 of the Regulation, which deals with inactive accounts, contains reg 30. That provides:
“30 List of inactive accounts
(1)On or before 1 April in each year, the registrar of a court must—
(a) prepare—
(i) a list of inactive accounts; and
(ii) a notice complying with subsection (3); and
(b) file the list in the court; and
(c) display the notice in the court registry; and
(d) if the total of the money and securities mentioned in the list is more than $1000—publish the notice in the gazette and in a newspaper circulating generally in the district in which the court is constituted.
(2) The notice must be displayed for at least 42 days.
(3) The notice must contain the list of inactive accounts and state that—
(a) a person claiming an entitlement to money or securities in court mentioned in the list may apply to the court for an order for payment, delivery or transfer of the person’s entitlement; and
(b) if an application is not made by a stated day, an order may be made—
(i)for money in court—that the money be paid into the consolidated fund; or
(ii) for securities in court—that the securities be sold and the net proceeds of the sale, and any interest accrued on the securities, be paid into the consolidated fund.
(4) The day stated in the notice must be at least 42 days after the later of the following days—
(a) the day the notice is displayed under subsection (1)(c);
(b) if subsection (1)(d) applies—the day subsection (1)(d) is complied with.
(5) The cost of publishing the notice may be debited by the registrar to the inactive accounts mentioned in the list in proportion to the value of the accounts.”
Regulation 30 requires the Registrar to prepare a “list of inactive accounts”. That is defined as:
“list of inactive accounts means a list of accounts that, at the start of 1 January in a particular year, were credited with money or securities in court that had not been dealt with, other than by continuous investment or continuous payment of interest, in the previous 6 years.”[7]
[7]Schedule Dictionary.
Regulation 30 then prescribes a process of advertising the intention of the Registrar to transfer the money into the consolidated fund if no claim is made by those entitled to the money. Regulation 30(3)(a) contemplates an application being made to the Court by any person claiming the money.
The procedure prescribed by Part 9 will lead to inactive accounts being dealt with either by a “payment out order”[8] or a “consolidated fund order”[9].
[8]Court Funds Regulation 2009 reg 31.
[9]Court Funds Regulation 2009 reg 32.
Regulation 31 provides a procedure whereby a claimant to money or securities which are to the credit of an inactive account may apply to the Court for an order that the money or securities be paid to them. If successful, a payment out order is achieved.
In the event that no payment out order is applied for under reg 31 within the prescribed time, the Registrar may apply for a consolidated fund order under reg 32. That section provides:
“32 Consolidated fund order
(1) This section applies if no application for a payment out order for money or securities in court mentioned in a list of inactive accounts is made within the period stated in the notice displayed or published under section 30(1) or the further time the court may allow.
(2) The registrar may apply to the court for an order (a consolidated fund order)—
(a) for money in court—that the money be paid into the consolidated fund; or
(b) for securities in court—that the securities be sold and the net proceeds of the sale, and any interest accrued on the securities, be paid into the consolidated fund.
(3) The registrar must file in the court—
(a) a copy of the notice displayed or published under section 30(1); and
(b) a statement signed by the registrar stating—
(i) section 30 has been complied with for the money or securities; and
(ii) an application for a payment out order has not been made within the period stated in the notice.
(4) A statement under subsection (3) signed by the registrar is evidence of the matters it states.
(5) The court may make a consolidated fund order if satisfied of the matters mentioned in subsection (3)(a) and (b).”
Under reg 32, the right of the Registrar to apply for a consolidated fund order arises in relation to any money or securities the subject of the notice issued under reg 30 where there has been no application for a payment out order within the time specified by the notice. The other sub-regulations of reg 32 are all machinery provisions.
For completeness, it should be observed that reg 33 provides for a “transfer back order”, whereby a claimant to money or securities may apply for an order that the money or securities be paid or delivered to them, notwithstanding that a consolidated fund order has been made under reg 32.
The present application is one for a consolidated fund order.
On 21 March 2024, a list of accounts and notice[10] were filed in the Court. The list identified 10 inactive accounts, each of which was designated a number in the list.
[10]Court Funds Regulation 2009 reg 30(1).
Pursuant to reg 30(4) of the Regulation, the notice was displayed in the Registry on 22 March 2024 and remained displayed for no less than 42 days. The list was advertised both in the Government Gazette and in the Courier Mail on 22 March 2024, and those advertisements contained a statement in accordance with reg 30(3) of the Regulation.
Applications were made for payment out orders in relation to each of items 3, 7, 8 and 9 on the list. No application for a payment out order has been made in relation to items 1, 2, 4, 5, 6 and 10. Those items are:
Title of Cause or Matter
When Lodged
Amount held (Interest calculated to end February 2024)
1. BS 2539/04 – (Applicant) AUSTRALIAN KARATE FEDERATION (QLD) INC and (Respondent) AUSTRALIAN KARATE FEDERATION INCORPORATED
22 March 2004
$15,502.71
2. BS 3849/16 – (First Applicant) QNI RESOURCES PTY LTD ABN 14 504 117 921 and (Second Applicant) QNI METALS PTY LTD ABN 56 066 656 175 and (Third Applicant) QUEENSLAND NICKEL SALES PTY LTD ABN 15 009 872 566 and (First Respondent) JOHN PARK and (Second Respondent) STEFAN DOPKING and (Third Respondent) KELLY-ANNE TRENFIELD and (Fourth Respondent) QUENTIN OLDE and (Fifth Respondent) QUEENSLAND NICKEL PTY LTD (ADMINISTRATORS APPOINTED) ABN 85 009 842 068
09 January 2017
$99,048.36
4. BS 4386/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and (First Respondent) THRICE PTY LTD ACN 136 842 647 TRADING AS KEY RESTAURANT MALENY and (Second Respondent) LUKE NORMAN BUTLER and (Third Respondent) SIMONE AYELE ARABELLA BUTLER
03 May 2017
$622.39
5. BS 8128/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 (Respondent) THE OFFICIAL TRUSTEE IN BANKRUPTCY IN ITS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF TERRANCE MICHAEL GILLAN (A BANKRUPT) AND TANIA MAREE GILLAN (A BANKRUPT)
09 August 2017
$14,143.56
6. BS 4943/17 (Applicant) ING BANK (AUSTRALIA) LIMITED ABN 24 000 893 292 and (First Respondent) ELTON DUANE CONNORS and (Second Respondent) REBECCA AMY ROSE KATHLEEN HICKS (A BANKRUPT)
17 May 2017
$15,237.91
10. BS 1720/16 (Plaintiff) PERPETUAL LIMITED ACN 000 431 827 and (Defendant) KERRY BOLTON
19 January 2018
$34,683.64
The order sought by the Registrar seeks to deduct the costs of advertising pursuant to reg 30 and apportion those costs across the various amounts to be the subject of consolidated fund orders. That is authorised by reg 30(5).
Determination
I am satisfied that:
(i)the accounts identified are items 1, 2, 4, 5, 6 and 10 of the list are all inactive accounts;
(ii)the list of accounts and notice prepared by the Registrar complied with reg 30(1) of the Regulation;
(iii)the list has been advertised in accordance with the Regulation;
(iv)no application for a payment out order has been made in relation to items 1, 2, 4, 5, 6 and 10 of the list; and
(v)The cost of advertising is $7,045.35.
The application for a consolidated fund order was not served upon any of the parties to the proceedings the subject of items 1, 2, 4, 5, 6 and 10 on the list even though the making of an order may affect their interests. I note that letters were sent to the last known address of persons who might be expected to be claimants to the money before the list was published and advertised.
In my view, the Regulation does not contemplate the service of the application upon persons who may have an interest in the funds. Regulation 32 prescribes the procedure which the Registrar must follow in order to obtain a consolidated fund order. There is nothing in reg 32 suggesting that the application must be served on interested parties. There is indication quite to the contrary, namely the requirement to advertise the list of inactive accounts,[11] the fact that the advertisement must contain the statement prescribed by reg 30(3), and that the interest of any claimant to the money is protected by reg 33 which gives a right to apply for a transfer back order, even after a consolidated fund order has been made.
[11]Court Funds Regulation 2009 reg 30(1)(d).
Order
It is ordered:
1. The balance of the monies standing to the credit of the account in the Supreme Court being items 1, 2, 4, 5, 6 and 10 in the List of Accounts prepared by the Registrar pursuant to Regulation 30(1) of the Court Funds Regulation 2009, and which have not been disposed of, together with accrued interest, and less costs of advertising, be transferred to the Consolidated Fund.
Title of Cause or Matter
When Lodged
Amount held (Interest calculated to end February 2024)
1. BS 2539/04 – (Applicant) AUSTRALIAN KARATE FEDERATION (QLD) INC and (Respondent) AUSTRALIAN KARATE FEDERATION INCORPORATED
22 March 2004
$15,502.71
2. BS 3849/16 – (First Applicant) QNI RESOURCES PTY LTD ABN 14 504 117 921 and (Second Applicant) QNI METALS PTY LTD ABN 56 066 656 175 and (Third Applicant) QUEENSLAND NICKEL SALES PTY LTD ABN 15 009 872 566 and (First Respondent) JOHN PARK and (Second Respondent) STEFAN DOPKING and (Third Respondent) KELLY-ANNE TRENFIELD and (Fourth Respondent) QUENTIN OLDE and (Fifth Respondent) QUEENSLAND NICKEL PTY LTD (ADMINISTRATORS APPOINTED) ABN 85 009 842 068
09 January 2017
$99,048.36
4. BS 4386/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 and (First Respondent) THRICE PTY LTD ACN 136 842 647 TRADING AS KEY RESTAURANT MALENY and (Second Respondent) LUKE NORMAN BUTLER and (Third Respondent) SIMONE AYELE ARABELLA BUTLER
03 May 2017
$622.39
5. BS 8128/17 – (Applicant) COMMONWEALTH BANK OF AUSTRALIA ABN 48 123 123 124 (Respondent) THE OFFICIAL TRUSTEE IN BANKRUPTCY IN ITS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF TERRANCE MICHAEL GILLAN (A BANKRUPT) AND TANIA MAREE GILLAN (A BANKRUPT)
09 August 2017
$14,143.56
6. BS 4943/17 (Applicant) ING BANK (AUSTRALIA) LIMITED ABN 24 000 893 292 and (First Respondent) ELTON DUANE CONNORS and (Second Respondent) REBECCA AMY ROSE KATHLEEN HICKS (A BANKRUPT)
17 May 2017
$15,237.91
10. BS 1720/16 (Plaintiff) PERPETUAL LIMITED ACN 000 431 827 and (Defendant) KERRY BOLTON
19 January 2018
$34,683.64
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