National Australia Bank Ltd v Cunningham [2014] NSWSC 1095

Supreme Court New South Wales

Medium Neutral Citation: National Australia Bank Ltd v Cunningham [2014] NSWSC 1095 Hearing dates: 29/07/2014 Decision date: 29 August 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order pursuant to r 41.3 of the Uniform Civil Procedure Rules 2005, that the funds paid into Court by the second and third defendants (being Neil Cunningham and Paola Toppi) in the amount of $343,000, together with all accrued interest thereon, be paid out to the plaintiff forthwith. (2) Order the second and third defendants to pay the plaintiff's costs of the Motion. Catchwords: PROCEDURE - civil - funds paid into Court in course of proceedings, together with accrued interest, to be paid to plaintiff; application for - Uniform Civil Procedure Rules; r 41.3 - possession proceedings initiated by plaintiff - funds paid into Court pursuant to Court Orders in possession proceedings to enable settlement of the sale of property to occur - paid on account of reasonable estimated future costs of plaintiff - defendants intended to commence proceedings against the plaintiff - proceedings instead commenced against receivers appointed by plaintiff - receivership proceedings - acknowledgment in receivership proceedings that the monies were held for broader purpose - plaintiff remained liable for receivers' costs - whether terms of acknowledgment are sufficiently clear to enable the Court to make the order sought - COSTS - general rule that costs follow the event Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: National Australia Bank Ltd v Lavin [2011] NSWSC 440 Category: Principal judgment Parties: National Australia Bank (P) Neil Cunningham (D2) Paola Toppi (D3) Representation: Counsel: D G Price (P) P Beazley (D2, D3) Solicitors: Dibbs Barker (P) Beazley Singleton Lawyers (D2, D3) File Number(s): 2010/150034