Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661

New South Wales Supreme Court

CITATION : Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 9/3/10, 12/3/10, 4/6/10, 11/6/10

JUDGMENT DATE : 22 June 2010

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

DECISION : 1.The sum of $130,699.93 paid into Court by the Commonwealth Bank of Australia in proceeding 2007/00255855 together with interest accrued thereon be paid out to Jody Swift as the administrator of the estate of the late Mahmoud Slieman. 2. No order as to costs.

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - funds paid into Court under Trustee Act Part 4 - application for payment out of court - matters to be established - Held: matters required are established - order for payment made out .

Real Property Act 1900 (NSW) s 58(3) LEGISLATION CITED : Trustee Act 1925 (NSW), Part IV,ss 95, 98 Uniform Civil Procedure Rules 2005 rr 55.8, 55.9, 55.10, 55.11

CATEGORY : Principal judgment

CASES CITED : Bank of NSW v Adams [1982] 2 NSWLR 659

PARTIES : Plaintiff- Commonwealth Bank of Australia Applicant- Jody Swift

FILE NUMBER(S) : SC 2010/48858

SOLICITORS : Applicant- Ms Tania Ferizis

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

SLATTERY J

TUESDAY, 22 JUNE 2010

2010/48858 RE COMMONWEALTH BANK OF AUSTRALIA v THE ESTATE OF THE LATE MAHMOUD SLIEMAN JUDGMENT 1 HIS HONOUR: The Commonwealth Bank of Australia Limited, the plaintiff in these proceedings was the mortgagee of a property in Robert Street, Greystanes and another property in Robertson Street, Guildford West. The mortgagor of these properties was Mahmoud Slieman. The bank's mortgages secured financial accommodation that it provided provided to Mr Slieman as borrower. Mr Slieman defaulted on his obligations under the mortgages. The bank exercised its power of sale under the mortgage of the Greystanes property in January 2006 and the Guildford West property in December 2005. 2 The bank completed the sale of the two properties and paid the net settlement proceeds of $130,698.93 into Court pursuant to Part IV Trustee Act 1925 (NSW) in June 2007. The payment was made pursuant to the liberty provided under s 95 Trustee Act to trustees to make such payments into Court. Mr Slieman is missing and presumed dead. Ms Jody Swift now seeks payment of the funds in Court out to her in her capacity as administrator of his estate. 3 This Court has a policy of reducing the risk of identity theft through its published judgements. For that reason neither the address of the Greystanes property nor the address of the Guildford West property are published in full in this judgement. If the precise addresses of the two properties are required then application can be made for access to the Court's file. 4 Mr Sliemann disappeared on 2 February 2003 in mysterious circumstances. He was last seen alive just after getting into a white motor vehicle at about 7:30 that morning. In June 2007 the New South Wales Deputy Coroner conducted an inquest into his disappearance and presumed death. On 5 June 2007 the Deputy Coroner made formal findings that, "Mr Mahmoud Slieman died on about 2 February 2003. Having regard to the further material contained within the evidence before me, the evidence before me does not enable me to make any findings as to the manner and cause of his death. The evidence before me does raise suspicions or suggestions that perhaps Mr Slieman's death was the result of intentional acts by persons or persons unknown." The Coroner recommended that a reward be offered for information, which could lead to the apprehension of the person or persons responsible for the death of Mr Slieman. 5 Ms Jody Swift was the de facto partner of Mr Slieman at the time of his death. She commenced proceedings in January 2008 for a grant of letters of administration of the estate of Mr Slieman on the basis of his presumed death: Probate proceedings 100407/2008 Supreme Court, Equity Division. The file in these probate proceedings has been treated as before me on the present application. In the probate proceedings Ms Jody Swift adduced evidence as to the circumstances of Mr Slieman's disappearance and presumed death. On 9 December 2009 orders were made in the probate proceedings accordance with her summons for presumption of death with leave granted to distribute the estate. Ms Swift became the administrator of Mr Slieman's estate upon his being found presumed dead as at the date of commencement of the probate proceedings, namely on 14 January 2008. As the administrator of Mr Slieman's estate Ms Swift now seeks distribution of the funds that the Commonwealth Bank paid into Court.