Watson Wyatt Superannuation Pty Ltd v Oberlechner & 2 ors [2008] NSWSC 272

New South Wales Supreme Court

CITATION : Watson Wyatt Superannuation Pty Ltd v Oberlechner & 2 ors [2008] NSWSC 272

HEARING DATE(S) : 28 February 2008 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 28 February 2008

DECISION : The charge caught the money in the trustee's hands, but was defeated by the forfeiture provision. The costs clause in the security was not engaged.

CATCHWORDS : SECURITIES – charges – pursuant to condition imposed by Court – construction – whether charge of proceeds of suit caught moneys paid voluntarily by defendant in discharge of cause of action – where policy against assignment of interests in superannuation funds – whether charge defeated by contractual forfeiture – whether moneys ceased to be part of trust fund on admission but before payment of claim. - COSTS – provision in security obliging mortgagor to pay all mortgagee's costs of acting in connection with mortgage – whether suit in connection with charge was caught – discretionary considerations.

(CTH) Bankruptcy Act 1966 LEGISLATION CITED : (CTH) Superannuation Industry (Supervision) Act 1993, s 31 (CTH) Superannuation Industry (Supervision) Regulations 1994, reg 13.11, 13.12, 13.13

CATEGORY : Principal judgment

First Mortgage Management Investments Limited v Oberlechner [2006] NSWSC 1397 CASES CITED : Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 906 Oberlechner v Watson Wyatt Superannuation Pty Ltd [2007] NSWSC 1435 Woddell v Kerr-Jones [2002] FCA 1090

Watson Wyatt Superannuation Pty Ltd (plaintiff) PARTIES : Alfredo Oberlechner (first defendant/cross defendant) Herbert Weller (second defendant) First Mortgage Managed Investments Pty Ltd (second cross claimant/third defendant)