Re: Application of Penelope Champion [2020] NSWSC 1023

Supreme Court New South Wales

Medium Neutral Citation: Re: Application of Penelope Champion [2020] NSWSC 1023 Hearing dates: 21 April 2020, 12 May & 15 May, 4 August 2020 Date of orders: 4 August 2020 Decision date: 04 August 2020 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Orders made, permitting $51,958.68, being one half of the funds in Court, to be paid out to the third applicant. Proceedings adjourned to allow further evidence to be adduced in support of the third applicant's claim to the other half of 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 in court – property was held by tenants in common is auctioned by a mortgagee in possession – the third applicant for the funds was one of two tenants in common of the auctioned property – the whereabouts of the other tenant in common, who defaulted on the mortgage over the real property is unknown – the third applicant applies for the payment out of Court of $51,958.68, being one half of the amount in Court, being $103,917.35 – the third applicant also makes a claim against the other tenant in common to the balance of the funds in Court. 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. Legislation Cited: Trustee Act 1925, s 95 Uniform Civil Procedure Rules 2005, r 55.11 Category: Procedural and other 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