Supreme Court New South Wales Medium Neutral Citation: St George Bank Ltd; Application of Saveski [2011] NSWSC 1187 Hearing dates: 13 September 2011 Decision date: 13 September 2011 Jurisdiction: Equity Division - Duty List Before: Rein J Decision: See [6] and [7] Catchwords: EQUITY - Equitable remedies - Mortgagee exercised power of sale - Surplus proceeds of sale paid into court - Motion for payment out of court - Whether applicant entitled to funds - Whether any competing claimants - Whether all interested parties served Category: Principal judgment Parties: St George Bank Ltd (plaintiff) Goce Saveski (first applicant) Nikolina Saveski (second applicant) Armstrong Wily (second respondent) Anthony John Brownlee (third respondent) Reliance Credit Union Ltd (fourth respondent) Super Equity Invests Pty Ltd (fifth respondent) Dimitri Sukoski (sixth respondent) Representation: G Saveski (first applicant in person and also appears for the second applicant) D Sukoski (sixth respondent in person) File Number(s): SC 2009/289522 EX TEMPORE Judgment 1The St George Bank Limited ( "the Bank" ), as the creditor of Mr Goce Saveski and Mrs Nikolina Saveski, obtained possession of their property and sold it which discharged the debt owed to the Bank. The Bank subsequently applied to pay moneys into Court, the balance being in the order of $12,500, and subsequently paid the money into Court. In an affidavit filed by Mr James Graham of 29 June 2009 a solicitor on behalf of the Bank, a number of possible claims on the fund were identified. 2Mr and Mrs Saveski apply for payment out to them of the moneys which remain in the Court. Although Mr Saveski has not provided a formal affidavit of service, he has provided receipts for his postings to the parties identified in Mr Graham's affidavit other than to his wife who has now become an applicant as well. Those slips have been marked as Exhibit A on this application. 3I am informed by Mr Saveski that what he sent by registered post was the notice of motion on which he moves and his affidavit of 6 September 2011. He also informed me, and I accept, that although he and his wife were made bankrupt, that bankruptcy was annulled in 2009. One of the slips that he has tendered, part of Exhibit A, is one relating to despatch of documents to his and his wife's former Trustee in Bankruptcy. I note that the Trustee in Bankruptcy was also served by the Bank when the Bank filed its original summons to pay money into Court. 4A Mr Dimitri Sukoski is one of the persons who was identified in Mr Graham's affidavit as a potential claimant on the fund. Mr Sukoski, although in Court, initially did not appear in the matter. After becoming aware that he had been in Court, I had the matter relisted later in the day. He and Mr Saveski had by then reached an agreement that the sum of $3,500 should be paid to Mr Sukoski out of the fund. 5I am satisfied there is no claimant other than Mr Sukoski who wishes to advance a claim in relation to the fund which is in Court and that Mr and Mrs Saveski, save to the extent that agreement has been reached with Mr Sukoski, are entitled to that money. 6I direct that the amount of $3,500 be paid to Mr Sukoski out of the fund by payment into Mr Sukoski's bank account. 7I direct that the balance, being $9,082.06, together with any interest which has accrued, be paid out to Mr and Mrs Saveski by payment to an account in the name of both Mr and Mrs Saveski. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2011