Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208

New South Wales Supreme Court

CITATION : Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208

HEARING DATE(S) : 14 September 2006 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 09/14/2006

CATCHWORDS : PAYMENTS INTO AND OUT OF COURT – Procedure – Where funds paid in without proceedings – Summons for payment out should be filed with matter number allocated to affidavit on payment in – – requirement for accountant's certificate and evidence of absence of stop orders - Parties – Where defendant who cannot be served does not apparently have claim – order that defendant be removed as party

LEGISLATION CITED : Supreme Court Rules 1970 (NSW), Pt 70 rr 12, 13 NSW Court Forms Precedents & Pleadings, [3440]

CASES CITED : Re Howe; Ex parte Brett (1871) LR 6 Ch App 838, 841 Austin v Royal (1999) 47 NSWLR 27

Christopher John Palmer (plaintiff) Orix Australia Corporation Limited (first defendant) PARTIES : Sam Peter Cassaniti (second defendant) Michelle Hatzidimitrou (third defendant) St George Bank Limited (fourth defendant) Quest Enterprises (NSW) Pty Ltd (fifth defendant)

FILE NUMBER(S) : SC 4158/06; 1535/06

COUNSEL : Mr D Courtenay (sol) (plaintiff)

SOLICITORS : Courtenay & Co (plaintiff) Kemp Strang (fourth defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Thursday 14 September 2006

4158/06 Christopher John Palmer v Orix Australia Corporation Ltd & Ors JUDGMENT (Ex tempore) 1 HIS HONOUR: On 22 February 2006, in proceedings 1535/05, St George Bank Ltd paid into Court a sum of $21,635.19, being the surplus proceeds of sale of a property situate at and known as Unit 3, 3 Kaleski Avenue, Moorebank in the State of New South Wales, being the land comprised in folio identifier 3/SB 39420, which St George had sold as mortgagee. In the affidavit which accompanied the payment in, the deponent indicated that claims on the surplus were being made by Orix Australia Corporation Ltd, Sam Peter Cassaniti, and Christopher John Palmer of O'Brien Partners. By summons filed in proceedings 4158/06 on 9 August 2006, Mr Palmer, as plaintiff, claims an order pursuant to Trustee Act s 98 (3) that the moneys paid into Court be paid out to him. The defendants are Orix as first defendant, Mr Cassaniti as second defendant, Michelle Hatzidimitriou as third defendant, St George Bank as fourth defendant and Quest Enterprises as fifth defendant. Mr Palmer is the liquidator of Hats Enterprises Pty Ltd, the registered proprietor of the subject property. 2 Caveats lodged by Orix and by Quest Enterprises Pty Ltd followed the St George mortgage on the title. 3 There is no evidence before me of the precise nature of the interest which Orix claimed, but on what I am informed by Mr Courtenay, solicitor, who appears for the liquidator but who has also acted for Orix in related proceedings, it appears to have been an interest in the nature of a charge under a finance lease facility. Quest Enterprises' caveat described itself as "Quest Enterprises Pty Ltd trading as Cassaniti & Associates", and claimed an equitable interest of an undescribed nature pursuant to a letter of engagement said to have been entered into between Hats Enterprises and Mr Cassaniti.