RHG Mortgage Corporation Limited v Polino
[2014] NSWSC 669
•23 May 2014
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: RHG Mortgage Corporation Limited v Polino [2014] NSWSC 669 Hearing dates: 23 May 2014 Decision date: 23 May 2014 Before: Schmidt J Decision: 1. That the sum of $39,249 be paid to Mrs Joanne Polino provided that:
(i) Mrs Polino file an affidavit on or before 30 May 2014 evidencing that a copy of this order has been served on her ex-husband, Mr Roland Silud Polino.
(ii) If on or before 6 June 2014 Mr Polino has not taken steps to have these proceedings relisted so as to pursue any claim to payment of the sum paid into court by the plaintiff to him.
Catchwords: PROCEDURE - notice of motion - order seeking payment of sum paid into court to defendant - steps to be taken before orders are finalised for payment - orders made Legislation Cited: The Trustee Act 1925 (NSW) Category: Procedural and other rulings Parties: RHG Mortgage Corporation Limited (Plaintiff)
Joanne Polino (Applicant on Motion)Representation: Solicitors:
Mrs J Polino, unrepresented (Applicant on Motion)
File Number(s): 2014/126400 Publication restriction: None
EX TEMPORE Judgment
HER HONOUR: By summons filed on 28 April 2014, the plaintiff, RHG Mortgage Corporation Limited, proposed to make payment into court in the sum of $39,249.62 pursuant to s 98 of The Trustee Act 1925. That summons was supported by an affidavit sworn by Mr Pong, the plaintiff's solicitor who deposed to the circumstances in which that payment was to be made into court. They included that a Mr Roland Silud Polino and Mrs Joanne Polino had mortgaged certain property of which they were then registered proprietors, which had been sold by the plaintiff exercising its power of sale under the mortgage in March 2014, resulting in the plaintiff holding excess funds after the sale of the property.
Annexed to the affidavit were various documents, including a title search and a copy of a caveat which indicated that a caveator, Bathla Investments Pty Limited, had placed a caveat over the property. Also annexed to the affidavit was various correspondence addressed to Mr and Mrs Polino and the caveator, seeking written directions in relation to release of the surplus funds. Mr Pong deposed that the plaintiff had not received a response to those inquiries and thus proposed to make payment of the funds into court.
The only other active party in the proceedings has been Mrs Polino, who filed a notice of motion on 14 May, which was supported by an affidavit which she swore on 14 May, in which she sought orders in relation both to the caveator and Mr Polino, in relation to the money which has been paid into court.
Mrs Polino has appeared today seeking an order for payment of the sum which has been paid into court, to her. Neither the caveator nor Mr Polino have appeared in the proceedings to seek any payment to them. Her application today has been supported by a further affidavit sworn on 22 May, together with exhibit 1, being copies of the summons, the notice of motion and her affidavit in support of that motion. Other documents establish that the caveat has been withdrawn.
Mrs Polino's affidavit of 22 May deposes to communications between her, the former caveator and her former husband in relation to the proceedings and the disposal of the sum paid into court. Annexed to the affidavit are copies of text communications which she has had with her former husband, and a document which she says evidences service of the notice of motion, the summons and affidavit.
Having heard Mrs Polino today, it seems to me that there is no question as to her interest in the sum which has been paid into court, nor is there any question that Bathla Investments Pty Limited, is now a former caveator, which has taken no steps to appear in the proceedings to pursue any interest in that sum. It was well aware of the steps taken by the plaintiff in relation to the sum and has taken no steps to appear in the proceedings to pursue any interest it might have, after service of Mrs Polino's notice.
Insofar as Mr Polino is concerned, he too, seems to have an obvious interest in the money which has been paid into court, being one of the two prior registered proprietors of the land which the plaintiff sold. He has not taken any steps to appear in the proceedings or to pursue any interest in that money, despite, it appears, service of the motion which Mrs Polino has filed and the documents and content to which she deposed.
Nevertheless, given the terms of the motion, it seems to me that further steps must be taken before orders are finalised for payment in favour of Mrs Polino, to ensure that Mr Polino understands that Mrs Polino is seeking payment of the entire sum to her and giving him an opportunity to be heard in that regard, if he wishes to pursue any interest in the money paid into court in these proceedings. I say that because of the terms in which the orders sought in the notice of motion are couched, which do not clearly indicated that the order sought was for payment of all the money to Mrs Polino.
Accordingly, I propose to make orders which will give Mr Polino an opportunity to pursue any interest in the monies which have been paid into court, if he wishes, failing which that sum should be paid to Mrs Polino.
The orders which I propose to make are the following:
1. That the sum of $39,249 be paid to Mrs Joanne Polino provided that:
(i) Mrs Polino file an affidavit on or before 30 May 2014 evidencing that a copy of this order has been served on her ex-husband, Mr Roland Silud Polino.
(ii) On or before 6 June 2014 Mr Polino has not taken steps to have these proceedings relisted so as to pursue any claim to payment of the sum paid into court by the plaintiff to him.
I propose to consider the file in chambers in the week commencing 9 June 2014. If Mrs Polino's affidavit evidencing service has been filed and Mr Polino has not taken steps to have the matter relisted to pursue any interest which he wishes to pursue in relation to the money paid into court, I will then formally make an order for payment of that sum to Mrs Polino.
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Amendments
10 June 2014 - spelling error 'properties' now 'proprietors'
Amended paragraphs: [1]
Decision last updated: 10 June 2014
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