Supreme Court New South Wales Medium Neutral Citation: Re Gateway Credit Union Pty Limited; Hodges v Turley [2013] NSWSC 1058 Hearing dates: 2 & 6 August 2013 Decision date: 06 August 2013 Before: Kunc J Decision: Directions given Catchwords: MORTGAGES - Sale under power - Proceeds of sale - Directions for payment of surplus paid into court Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Principal judgment Parties: Amanda Hodges (Applicant Grant Turley (Respondent) Representation: Counsel: Ms K Dawson (for Applicant) No appearance (Respondent) Solicitors: Carroll & O'Dea (Applicant) File Number(s): 2011/41286 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: The applicant on the motion (Ms Hodges) and the respondent (Mr Turley) were for a period of time in a relationship with each other. In the course of that relationship they became the registered proprietors of a unit in Neutral Bay (the "Property"). Gateway Credit Union ("Gateway") was the mortgagee in relation to the Property. 2The Property was sold by Gateway for $630,000 as mortgagee in possession. After payment out of the mortgage and its costs and expenses, Gateway paid the balance of the sale proceeds (the "Balance") into Court, engaging the provisions of UCPR Pt 55 r 55.9. 3In accordance with UCPR Pt 55 r 55.11, Ms Hodges has filed a notice of motion which has come before me in the Duty List for directions as to the disposition of the Balance. She is entitled to the directions which she seeks. 4When they purchased the Property Ms Hodges and Mr Turley came to an agreement as to their respective ownership interests in the Property and their respective liability to make contributions towards the mortgage to Gateway and the costs and expenses of the Property. It is not necessary for me in these reasons to set out those arrangements in any detail. Ms Hodges made a number of contributions in respect of the Property and these have been proven in the evidence before me. 5At various times the relationship between Ms Hodges and Mr Turley was necessarily a long distance one because of Ms Hodges' responsibilities as a consular officer of the Commonwealth of Australia with postings in various parts of the world. Since the end of their relationship, it appears that Mr Turley has moved to the United States and, thus far, apparently is taking no further interest in the resolution of any entitlement which he may have to the Balance. It was his reluctance to sell the Property or make a decision in relation to its disposition that led Ms Hodges to cease to make mortgage payments to bring about a situation where the Property was sold by Gateway as mortgagee in possession. 6I am satisfied that Mr Turley has been put on notice of these proceedings by the papers being communicated to him at two email addresses in the United States, as well as notification being placed on his LinkedIn account. 7When the matter came before me in the Duty List and I had indicated to Ms K Dawson of Counsel, who appears for Ms Hodges, that I was disposed to make the orders which she sought, I made further directions for Mr Turley to be notified again of today's proceedings. In accordance with those directions he was notified of today and warned that, in his absence, orders would be made for the payment out of a substantial proportion of the Balance to Ms Hodges, as well as the likelihood that I would assess Ms Hodges' costs forthwith, also to be paid out of the Balance. 8The directions I made on the last occasion have been complied with. There has again been no appearance by Mr Turley and the matter has proceeded in his absence. 9I should add that Gateway has played no part in the proceedings. Its role was spent when it paid the money into Court. 10Ms Hodges and her legal advisers have gone to considerable lengths to calculate what they say is their client's entitlement to the Balance. There is evidence before me of the arrangements made between Ms Hodges and Mr Turley in relation to the Property as well as evidence of their respective contributions. The calculations made on behalf of Ms Hodges are, in some respects, quite complex but I am satisfied that they have sought to, and do in fact, deal fairly with the arrangements between the parties. 11The calculations also involve some estimates and allowances. Again, without reciting them in detail in these reasons, I am satisfied that those estimates and allowances are appropriate. The details of the calculations are set out in the helpful outline of submissions prepared by Ms Dawson dated 2 August 2013 which will remain with the papers to the extent that anyone may need to further consider the precise details which have led to the orders that I am about to make. 12On the basis of the material which has been put before the Court, I find that Ms Hodges is entitled to: (1)$198,131.86 from the money initially paid into Court in these proceedings; (2)52% of the interest that has accrued on that money; (3)All of the interest that has accrued on the money paid into Court by Gateway on or about 26 July 2013; and (4)$39,634.80 in respect of her costs of these proceedings. 13When the matter was before me on the last occasion, I indicated to Ms Dawson that given Mr Turley's apparent complete lack of interest in the proceedings, I was prepared (in the light of s 56 of the Civil Procedure Act 2005 (NSW) and the overriding purpose of disposing of the proceedings in a just, cheap and quick way) if suitable evidence was adduced to exercise the Court's power to assess Ms Hodges' costs in relation to her notice of motion forthwith. I did not think it sensible to commit Ms Hodges to the further course of pursuing Mr Turley for her costs by assessment or otherwise when there was a fund available (the Balance) from which her costs could be paid. 14On the question of costs Ms Hodges has filed an affidavit of Adrian John O'Dea who, I am satisfied, is experienced as a solicitor in relation to how costs in the Supreme Court are treated by a costs assessor. I have reviewed Mr O'Dea's evidence in relation to the likely amount a costs assessor would award Ms Hodges for her costs and disbursements of and incidental to her notice of motion. Mr O'Dea has arrived at a figure of $39,634.80 and I accept that is a proper figure for Ms Hodges' costs on the ordinary basis and her disbursements. 15In order to afford Mr Turley one last opportunity to participate in the proceedings if he wishes before the sums referred to in paragraph 12 above are paid out of Court to Ms Hodges from the Balance, I will make orders and directions to the effect that the order for payment be stayed until 10 am on 20 August 2013 and that Mr Turley be notified by 5 pm today of the orders which I am making by using the email addresses and LinkedIn account to which earlier notifications of these proceedings have been sent. 16I therefore make orders in accordance with the short minutes of order which I initial and date today and place with the papers. 17I note that disposes of Ms Hodges' notice of motion and that the orders contain a direction that they be entered forthwith. ********** 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: 07 August 2013