Pepper Finance Corporation Limited v Maloney [2013] NSWSC 890

Supreme Court New South Wales

Medium Neutral Citation: Pepper Finance Corporation Limited v Maloney [2013] NSWSC 890 Hearing dates: 27 June 2013 Decision date: 09 July 2013 Jurisdiction: Equity Division Before: Hallen J Decision: Orders that: (a) One half of the surplus fund, including any interest accrued thereon until the date of payment, paid into Court, by Pepper Finance Corporation Limited following the sale of the Goulburn property of which Theresa Marie Parker and Jeffrey Alan McKane were the named registered proprietors, be paid to Theresa Marie Wells, or as she may direct in writing. (b) The balance of the surplus fund, including any interest accrued thereon until the date of payment, paid into Court, by Pepper Finance Corporation Limited, following the sale of the Goulburn property of which Theresa Marie Parker and Jeffrey Alan McKane were the named registered proprietors, be paid to Theresa Marie Wells upon production to the Registrar of an affidavit sworn by, or on behalf of, Theresa Marie Wells, stating that the appeal commenced by Jeffrey Alan McKane to be heard in the Family Court of Australia on 18 November 2013, has been unsuccessful and annexing a copy of the orders made in the appeal. (c) Liberty is granted to either of Theresa Marie Wells or Jeffrey Alan McKane to approach my Associate for the purpose of seeking a date for the making of any application for further orders to implement or give effect to these orders. (d) The notice of motion filed on 20 February 2013 by Kristine Frances Maloney is dismissed. (e) To the extent that Margaret McKane applies for payment to her of the surplus fund paid into Court, by Pepper Finance Corporation Limited following the sale of the Goulburn property of which Theresa Marie Parker and Jeffrey Alan McKane were the registered proprietors, that application is dismissed. (f) There be no order as to costs of the notice of motion filed by Kristine Frances Maloney, or on the application of Margaret McKane, each of which has been dismissed. (g) Otherwise, there be no order as to costs to the intent that each applicant and Jeffrey Alan McKane will pay her, or his, own costs. Catchwords: PROCEDURE - Miscellaneous procedural matters - Funds paid into Court by mortgagee under Trustee Act Pt 4 - Fund represents surplus proceeds after mortgagee sale of property then owned by two of the claimants - Application for payment out of court - Procedure under Uniform Civil Procedure Rules - Payment into and out of Court - Matters to be established - Competing claimants - Whether any claimant has established that she has an interest in the fund - Order for payment out of whole of surplus to one of the claimants - However order for payment out of part of the surplus stayed Legislation Cited: Child Support (Registration and Collection) Act 1988 Civil Procedure Act 2005 Federal Circuit Court Rules 2001 Real Property Act 1900 Trustee Act 1925 Uniform Civil Procedure Rules 2005 Cases Cited: Adams v Bank of NSW (1984) 1 NSWLR 285 Avco Financial Services Ltd v Commonwealth Bank of Australia (1989) 17 NSWLR 679 Bank of NSW v Adams (1982) 2 NSWLR 659 Bofinger v Kingsway Group Limited [2009] HCA 44; (2009) 239 CLR 269 Cameron Pty Ltd, C & L, In the matter of - GB Gazzana v Nadalan Enterprises Pty Ltd; AF Gazzana v Nadalan Enterprises Pty Ltd [2012] NSWSC 676 Chong v Super Equity Invests Pty Ltd [2012] NSWSC 27 Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 Hope v Hope [1977] 1 NZLR 582 IMB Limited v Nallathambi [2009] NSWSC 1387 Jkb Holdings Pty Ltd v De La Vega [2013] NSWSC 501 Murrell, Re; Ex parte Official Trustee in Bankruptcy [1984] FCA 314; (1984) 57 ALR 85 Naxatu Pty Limited v Perpetual Trustee Company Limited [2012] FCAFC 163; (2012) 207 FCR 502 Provident Capital Ltd v Printy [2008] NSWCA 131 Residential Housing Corporation Ltd v Esber [2011] NSWCA 25 S & D International Pty Ltd (in liq) (rec & mgr apptd), Re [2009] VSC 225 St George Bank - A Division of Westpac Banking Corporation, Re [2011] NSWSC 730 Category: Principal judgment Parties: Pepper Finance Corporation Limited (Plaintiff) Kristine Frances Maloney (first Defendant) Theresa Marie Wells (second Defendant) Margaret McKane (third Defendant) Jeffrey Alan McKane (fourth Defendant) Representation: Counsel: Ms K Millist-Spendlove (second Defendant) Solicitors: Rachel Stubbs & Associates Solicitors (second Defendant) File Number(s): 2012/46814