Re: Application of Ellis and Lucey - [2020] NSWSC 567

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re: Application of Ellis and Lucey [2020] NSWSC 567
Hearing dates: 21 April 2020, 12 May & 15 May 2020
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction: Equity - Duty List
Before: Slattery J
Decision:
Orders made, permitting $75,000 of the funds in Court to be paid out to the first and second applicants. Directions made for the amendment of the first and second applicants’ motion for a former registered proprietor of the property to be added as a third applicant and seek payment out of the balance of the funds in Court to her. The Court notes that the applicants do not seek any interest on the funds in Court.

Catchwords:
CIVIL PROCEDURE – payment out of court – a fund, being the proceeds of sale of certain real property is paid into Court – claim made against the funds where a property that was held by tenants in common is auctioned by a mortgagee in possession – where the first and second applicants for the funds had paid $75,000 directly to the vendor as a deposit for a half-share in the real property – where the whereabouts of the tenant in common who defaulted on the mortgage over the real property is unknown.
EQUITY –Trusts and trustees — Bare trusts - Trustee Act 1925, s 95 – payment into Court – application to pay funds out of Court under Uniform Civil Procedure Rules 2005, r 55.11 – bank exercises its mortgagee’s power of sale of a property and after deduction of the first mortgage amount pays the balance of the proceeds of sale into Court – the registered proprietors of the property have not applied for the payment out-of-court – two applicants for payment of $75,000 out-of-court claim this sum is a deposit on a failed contract to purchase the subject property – one of the registered proprietors agrees with the applicants’ claim – the other cannot be found – whether the monies should be paid out of Court – no other evidence of other claimants to the funds in Court.
Legislation Cited:
Trustee Act 1925, s 95
Uniform Civil Procedure Rules 2005, r 55.11

Cases Cited:
Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661
Hewett v Court (1983) 149 CLR 639
Re La Trobe Capital [2009] NSWSC 1118
Re Salomons [1920] 1 Ch 290
Westpac Banking Corporation v Morris [2014] NSWSC 332
Whitbread & Co Ltd v Watt [1902] 1 Ch 835

Category: Procedural rulings
Parties: First applicant: Jeffrey Norm Ellis
Second applicant: Craig Stuart Lucey
Third applicant: Penelope Champion
Representation: First applicant: Jeffrey Norm Ellis in person
Second applicant: Craig Stuart Lucey in person
Third applicant: Penelope Champion in person

File Number(s): 2018/00335070
Publication restriction: No

Judgment

In November 2018, the Commonwealth Bank of Australia (“CBA”) paid into Court the sum of $174,249.93 being the net proceeds of the mortgagee sale of a 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: [2020] NSWSC 567
Decision Date: 15 May 2020

CaseChat Overview and Summary

In the matter of the Application of Ellis and Lucey, the dispute arose in relation to the payment out of court of funds derived from the sale of certain real property. The applicants, Ellis and Lucey, sought to claim $75,000 from a fund that was held by the court following the auction of a property held by tenants in common. The applicants had paid a deposit for a half-share in the property, and the other tenant in common was unable to be located. The court had to determine the legal issues surrounding the payment out of court of these funds.

The primary legal issues before the court were whether the applicants were entitled to claim the $75,000 from the fund, and if so, whether the fund should be paid out of court. The applicants argued that the $75,000 was a deposit on a failed contract to purchase the subject property. The registered proprietors of the property had not applied for payment out of court, but one of them had agreed with the applicants' claim. The court had to consider whether the applicants had a legitimate claim to the funds and if the fund should be paid out of court.

The court found that the applicants had a legitimate claim to the $75,000 as it was a deposit on a failed contract to purchase the subject property. The court also found that the other registered proprietor who could not be found had not contested the applicants' claim. The court considered the relevant statutory provisions and rules of court, including section 95 of the Trustee Act 1925 and rule 55.11 of the Uniform Civil Procedure Rules 2005. The court concluded that the applicants were entitled to the $75,000, and that the fund should be paid out of court to the applicants.

The court ordered that the $75,000 be paid out of court to the applicants, Ellis and Lucey. The court found that there were no other claimants to the funds in court, and that the applicants had a legitimate claim to the deposit. The court's decision provides guidance on the payment out of court of funds derived from the sale of real property, and the circumstances in which such funds may be paid out of court.

Orders