Eldsure Pty Limited v Sheridan Legal Pty Ltd [2020] NSWSC 1616

Supreme Court New South Wales

Medium Neutral Citation: Eldsure Pty Limited v Sheridan Legal Pty Ltd [2020] NSWSC 1616 Hearing dates: 12 November 2020 Date of orders: 12 November 2020 Decision date: 12 November 2020 Jurisdiction: Equity Before: Kunc J Decision: Funds in Court to be paid out to judgment creditor Catchwords: Civil procedure - Surplus funds from mortgagee sale paid into Court - Contest between costs judgment debtor beneficially entitled to funds and costs judgment creditor - Court's jurisdiction - UCPR Pt 55 r 11 Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Part 55 r 11 Cases Cited: La Trobe Capital [2009] NSWSC 1118 Reozone Pty Ltd v Rene Santoro & Ors [2018] NSWSC 650 Westpac Banking Corporation v Morris [1998] NSWSC 666 (2 December 1998) Westpac Banking Corporation v Arthur James Morris & Ors [2014] NSWSC 332 Category: Procedural and other rulings Parties: Eldsure Pty Limited t/as McGrath Coolangatta/Tweed Heads (ACN 071335861) (Applicant)

Sheridan Legal Pty Ltd (ABN 62119403753) (First Respondent)

John Theodore Duyker (Second Respondent) Representation: Counsel:

N Condylis (Applicant)

Solicitors:

Sheridan Legal Pty Ltd (First Respondent) J T Duyker (in person) File Number(s): 2018/158570 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. By notice of motion filed on 29 July 2020, the plaintiff applicant ("Eldsure") seeks these orders: "1 Order that the $27,300.47 paid into Court on 14 November 2018 stand as if garnished by the plaintiff and be applied in respect of the costs order made by Judge Neilson on 29 May 2017 in the sum of $174,791,58 obtained by the plaintiff in District Court proceedings No. 2014/00257210 and be paid to the plaintiff. 2 Further and in the alternative, order that the $27,300.47 paid into Court on 14 November 2018 be paid out of Court to the plaintiff in accordance with r 55.11 of the Uniform Civil Procedure Rules 2005 (NSW), 3 Order that the second defendant pay the plaintiffs costs of the proceedings on an indemnity basis. 4 Any further order the Court deems appropriate." 1. Mr N Condylis of Counsel appeared for Eldsure. The first respondent is Sheridan Legal Pty Ltd ("Sheridan Legal"), which was represented by its principal, Mr P Sheridan, solicitor. For reasons which will shortly become apparent, Mr Sheridan took no active role in the proceedings beyond indicating that, to the extent necessary, his firm consented to the orders sought by Eldsure. The second respondent is Mr John Theodore Duyker, who appeared for himself. 2. For the reasons which follow, the Court will grant the relief sought by Eldsure, but will stay those orders to give Mr Duyker an opportunity to appeal.