Richardson v Hough

[1999] NSWSC 784

CITATION:	Richardson v Hough [1999] NSWSC 784
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	1028/95
HEARING DATE(S):	26 July 1999
JUDGMENT DATE:	26 July 1999
PARTIES :	Anthony Charles Richardson (P) Elaine Margaret Maria Hough (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. Quinn (P) Mr. B. Kelly (D)
SOLICITORS:	John R. Quinn & Co (P) Kearns & Garside (D)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Monday, 26 July 1999

1028/98 ANTHONY CHARLES RICHARDSON -v- ELAINE MARGARET HOUGH

JUDGMENT

1 MASTER: There is presently before me a notice of motion filed by the defendant, Elaine Margaret Hough, on 9 July 1999. By that notice of motion the defendant seeks an order pursuant to section 100 of the Supreme Court Act 1970 that the Registrar in Equity or a Deputy Registrar in Equity be appointed to execute for and on behalf of the plaintiff all documents that are necessary so as to cause the defendant to be paid from the proceeds of Westpac Banking Corporation account number 11-1435 held at the Kiama Branch under the account name "Gearns and Garside and John R Quinn & Co in trust for Hough and Richardson" as are payable to the defendant in accordance with orders made in this Court on 12 November 1998. 2 In support of that notice of motion there have been filed two affidavits by John Peter Littrich, sworn respectively on 8 July 1999 and 19 July 1999. Mr Littrich is the solicitor for the defendant. In those affidavits he sets forth evidence of various communications with John R Quinn & Co, the solicitors for the plaintiff, Anthony Charles Richardson, concerning the amount in the bank account which is the subject of the present application. 3 For the purposes of the present application it is unnecessary for me to set forth in detail the procedural history of this matter. Suffice it to say that the amount which is in the bank account, the subject of the present application, represents the net proceeds of sale of a certain property which was sold pursuant to orders of the Court made on 6 June 1996. Subsequently orders were made that those net proceeds be held for the plaintiff as to 4287 shares and for the defendant as to 4587 shares. 4 The solicitor for the plaintiff has not been able to obtain specific instructions from his client for the solicitor to sign a withdrawal form in respect to the moneys which are payable to the defendant. Indeed it would appear that the plaintiff has personally communicated with the solicitor for the defendant and has expressed his opposition to the withdrawal of those moneys in accordance with the orders of the Court. 5 I am satisfied that the defendant is entitled to have the withdrawal form signed by the Registrar in Equity, to enable the orders of the court to be carried into effect. 6 The provisions of section 100 of the Supreme Court Act are framed in wide language and are such as to encompass the execution of documents of the nature which the defendant has requested the plaintiff through his solicitor to sign. Unless the Court makes an order of the nature presently sought the orders of the Court concerning the disposition of the moneys in this bank account will be rendered nugatory. 7    I make the following orders:

(1) I make an order as in paragraph 1 of the notice of motion filed by the defendant on 9 July 1999.
(2) I order that the plaintiff pay the costs of the defendant of the aforesaid notice of motion.
(3) I grant leave to the defendant to proceed forthwith to the assessment of the foregoing costs.

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