FEDERAL COURT OF AUSTRALIA
Woodgate (Trustee) v Northop Hall Pty Ltd
[2016] FCA 370
File number: NSD 55 of 2015 Judge: RARES J Date of judgment: 17 February 2016 Catchwords: COURTS AND ORDERS – application to vary consent order – consent order for money paid into court from sale of disputed property to abide decision as to which party entitled – where one party sought partial payment out of fund because of impecuniosity – whether party held beneficial interest in fund – whether discretion could be exercised to set aside or vary consent orders – whether party’s alleged impecuniosity warranted order for payment out of fund
Held: no order for payment out of funds held in Court
Legislation: Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth)
Admiralty Act 1988 (Cth) s 29
Federal Court Rules 2011 (Cth) rr 2.42, 2.43, 39.05
Cases cited: Adam P. Brown Male Fashion Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Baumgartner v Baumgartner (1987) 164 CLR 137
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226
Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661
Harvey v Phillips (1956) 95 CLR 235
Perpetual Trustee Company Limited; Application of Chen [2010] NSWSC 808
Date of hearing: 17 February 2016 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 39 Counsel for the Applicant: CM Lawrence Solicitor for the Applicant: Kemp Strang Counsel for the Respondent: J Gatland Solicitor for the Respondent: Gibson Howlin Layers
Table of Corrections 8 May 2017 Paragraph 35 has been amended. ORDERS
NSD 55 of 2015 BETWEEN: GILES GEOFFREY WOODGATE THE TRUSTEE OF THE PROPERTY OF GRAEME MARTIN JENNINGS A BANKRUPT
Applicant
AND: NORTHOP HALL PTY LTD ACN 119 559 438 IN ITS OWN RIGHT AND IN ITS CAPACITY AS TRUSTEE FOR THE BROAD OAK TRUST
First Respondent
MALEYRACK NOI SNITH
Second Respondent
AND BETWEEN: MALEYRACK NOI SNITH
Cross-Claimant on the First Cross-Claim
AND: GILES GEOFFREY WOODGATE THE TRUSTEE OF THE PROPERTY OF GRAEME MARTIN JENNINGS A BANKRUPT
Cross-Respondent on the First Cross-Claim
AND BETWEEN: NORTHOP HALL PTY LTD ACN 119 559 438 IN ITS OWN RIGHT AND IN ITS CAPACITY AS TRUSTEE OF THE BROARDOAK TRUST
Cross-Claimant on the Second Cross-Claim
AND: GILES GEOFFREY WOODGATE THE TRUSTEE OF THE PROPERTY OF GRAEME MARTIN JENNINGS A BANKRUPT
Cross-Respondent on the Second Cross-Claim
JUDGE:
RARES J
DATE OF ORDER:
17 FEBRUARY 2016
THE COURT ORDERS THAT:
1.The claims in the interlocutory application for security for costs by the applicant/cross-respondent filed 11 February 2016 be dismissed.
2.The applicant/cross-respondent be granted leave to serve any outlines of evidence in reply on or before 9 March 2016.
3.The respondents/cross-claimants be granted leave to serve any outlines of evidence replying to the outlines under order 2 above, on or before 23 March 2016.
4.The claims in the…
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- Case
- [2016] FCA 370
- Decision Date
CaseChat Overview and Summary
The court concluded that the agreement to pay the money into court on the basis recorded in order 5e) made on 10 November 2014 should not be disturbed. The court found that the purpose of the payment into court was to put the funds into the control of the Court to abide the outcome of the proceedings. The court noted that when a person pays money into court, the circumstances in which that is done can affect the character of the person’s rights and interests in the money. The court held that Ms Snith had no beneficial interest in the fund and that the discretion to set aside or vary the consent orders could not be exercised. The court also found that Ms Snith’s alleged impecuniosity did not warrant an order for payment out of the fund.
Accordingly, the court dismissed the claims in the interlocutory application for security for costs and the claims in the interlocutory application seeking an order that Ms Snith be paid money from the funds paid into Court. The court also granted leave to the respondents to adduce evidence at the final hearing from Graeme Martin Jennings and Stuart Albert Spencer.
Orders
Orders of the court
1. The claims in the interlocutory application for security for costs by the applicant/cross-respondent filed 11 February 2016 be dismissed.
2. The applicant/cross-respondent be granted leave to serve any outlines of evidence in reply on or before 9 March 2016.
3. The respondents/cross-claimants be granted leave to serve any outlines of evidence replying to the outlines under order 2 above, on or before 23 March 2016.
4. The claims in the interlocutory application filed by the respondents/cross-claimants on 11 February 2016 seeking an order that the second respondent be paid money from the funds paid into Court be dismissed.
5. There be no order as to costs of the interlocutory applications filed on 11 February 2016.
6. Leave be granted to the respondents to adduce evidence at the final hearing from:
(a) Graeme Martin Jennings (the bankrupt); and
(b) Stuart Albert Spencer.
THE COURT NOTES THAT:
7. The respondents/cross-claimants are to continue to make efforts for Mrs Audrey Jennings to give evidence by audio-visual link from the United Kingdom at a time of day which is suitable to accommodate the differing time zones between Australia and the United Kingdom and her advanced age and circumstances.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ms Snith contended that in the interests of justice, orders should be made giving her some reasonable access to the legal asset that she formally held as a 50% registered proprietor, now represented by the moneys paid into Court, in a similar way to that in which the trustee was entitled to be paid 40% of the net proceeds of sale of the Mosman property so as to enable him to conduct his administration and the various proceedings in which they are engaged. Ms Snith relied on Perpetual Trustee Company Limited; Application of Chen [2010] NSWSC 808 at [22] to suggest that once a party pays money into court he or she no longer retains any legal or equitable interest in the money. She argued that the proceedings had taken considerably longer than she had appreciated at the time that the consent orders were made, and that this was another reason why it would be just and equitable to vary them. Nonetheless, Ms Snith accepted that part of the delay was due to the circumstances in which she and the bankrupt found themselves in caring for their elderly parents overseas at times when they were then unable to comply timeously with orders for the provision of their outlines of evidence to bring the case on for hearing earlier. Those difficulties have now been overcome and the matter is being readied for trial in a diligent way. Consideration The purpose of the payment into court, as reflected in the terms of order 5 made by the Supreme Court, was to put the funds into the control of the Court to abide the outcome of the proceedings. When a person pays money into court, the circumstances in which that is done can affect the character of the person’s rights and interests in the money. Ordinarily, where a person pays money into court by way of security for the outcome of proceedings, the payer retains his or her beneficial interest in the fund up to the time of judgment. In Dwight v Commissioner of Taxation (1992) 37 FCR 178 at 192, Hill J explained that the other party or parties for whom the moneys are held in court as security for any future order in his, her, its or their favour, has or have a defeasible equitable charge or lien over the moneys in respect of that potential order, but no present entitlement to them. Only at the time of judgment might an order for payment from that fund, giving effect to the decision of the Court or arbitrator, change the underlying rights in the fund. Payment of money into court can be made as security for the outcome of proceedings in that or another court or in an arbitration. For example, s 29 of the Admiralty Act1988 (Cth) which gives courts exercising jurisdiction under the Act power to order that a ship or other property (including a bail bond or P&I club letter of indemnity or guarantee) be held as security for the satisfaction of a judgment of a foreign court or arbitral award that may be made in proceedings that are either extant or prospective and the court may impose conditions for that purpose. In other cases, such as in Chen [2010] NSWSC 808, a trustee appointed simply for sale who had no other connection to the subject matter of the controversy between the parties, will pay the net proceeds of sale into court and, the trustee having recouped the expenses and entitlements of the performance of the trust, will lose all beneficial interest in the trust fund paid into court. Ordinarily, the trustee’s beneficial interest in the trust fund to secure its right to reimbursement or exoneration for liabilities properly incurred in the administration of the trust will be satisfied at the time of payment into court: cf Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 at 246-247 [50] per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ.