La Trobe Capital & Mortgage Corporation Limited [No 2] [2009] NSWSC 1372

New South Wales Supreme Court

CITATION : La Trobe Capital & Mortgage Corporation Limited [No 2] [2009] NSWSC 1372

HEARING DATE(S) : 30 October & 26 November 2009

JUDGMENT DATE : 9 December 2009

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

DECISION : No order made until further evidence provided by both parties.

CATCHWORDS : PROCEDURE - funds in court - application for payment of funds out of court - two applicants - matters to be established - some matters not yet made out - no order for payment made

Civil Procedure Act 2005 (NSW) LEGISLATION CITED : Land Transfer Act 1952 (NZ) s 104 Real Property Act 1900 (NSW) s 58, s 74 Trustee Act 1925 (NSW) s 95

CATEGORY : Principal judgment

AVCO Financial Services v Commonwealth Bank of Australia (1989) 17 NSWLR 679 Bank of NSW v Adams (1982) 2 NSWLR 659 CASES CITED : Beeby v Official Assignee of Pickering and Pickering [1953] NZLR 832 Hope v Hope (1937) 1 NZLR 582 Wight v Haberdan Pty Limited (1984) 2 NSWLR 28

PARTIES : First Plaintiff: La Trobe Capital Second Plaintiff: Mortgage Corporation Limited [No 2]

FILE NUMBER(S) : SC 3888/09

COUNSEL : First Plaintiff: Mr Ross (Self Represented) Second Plaintiff: Mr Wilson (Self Represented)

SOLICITORS : First Plaintiff: Mr Ross (Self Represented) Second Plaintiff: Mr Wilson (Self Represented)

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

SLATTERY J

WEDNESDAY 9 DECEMBER 2009

3889/09 LA TROBE CAPITAL & MORTGAGE CORPORATION LIMITED [NO 2] JUDGMENT 1 HIS HONOUR: Union Fidelity Capital Funding Pty Limited ("Union Fidelity") seeks the payment out of court to it of the sum of $5,199.77. Union Fidelity claims that sum from a larger fund paid into court by La Trobe Capital and Mortgage Australia Ltd ("La Trobe") the plaintiff in these proceedings. La Trobe was the mortgagee of a property known as "Caawarie" in Orange Road Forbes New South Wales ("the property"). The mortgagor, Spurlet International Pty Limited ("Spurlet") conducted an orchard business from the property. La Trobe exercised a power of sale over the property and completed a sale on 25 June 2009. La Trobe paid the net settlement proceeds of $12,709.82 into court under s 95 of the Trustee Act 1925 (NSW) ("the Act"). 2 This matter last came before me on 8 October 2009. In a judgment of that date La Trobe Capital [2009] NSWSC 1118 I concluded that Union Fidelity had not yet advanced sufficient evidence to prove that the sum of $5,199.77 should be paid out to it from the larger net settlement proceeds of $12,709.82. The Court identified in that earlier judgment the several ways in which the evidence relied upon by Union Fidelity was deficient. In summary there were three problems with Union Fidelity's evidence.