Perpetual Trustee Company Limited [2018] NSWSC 734

Supreme Court New South Wales

Medium Neutral Citation: Perpetual Trustee Company Limited [2018] NSWSC 734 Hearing dates: 21 May 2018 Date of orders: 21 May 2018 Decision date: 21 May 2018 Jurisdiction: Common Law Before: Campbell J Decision: Orders in accordance with the short minute of orders. Catchwords: CIVIL PROCEDURE – proceedings for directions as to payment out of court - application under UCPR 55.11 - Trustee Act 1925 (NSW) - mortgagee of real property - defaulted on mortgage - title search - no caveat - identification of applicant - supplementary affidavit - In the matter of Concrete Injector Bolts Pty Ltd [2012] NSWSC 820 - three elements - one relevant element - usually necessary to be proved by the applicant for payment out - satisfied in the circumstances - forthwith order Legislation Cited: Trustee Act 1925 (NSW) s 98; Uniform Civil Procedure Rules 2005 (NSW) 55.11 Cases Cited: In the matter of Concrete Injector Bolts Pty Ltd [2012] NSWSC 820 Texts Cited: Nil Category: Consequential orders (other than Costs) Parties: Perpetual Trustee Company Limited (Plaintiff) Andrew John McPherson (Defendant) Representation: Counsel: D Hand (Applicant)

Solicitors: William Munro (Munro Legal Pty Ltd) (Applicant) File Number(s): 2017/00149559

EX TEMPORE Judgment 1. I am dealing with an application under Uniform Civil Procedure Rules 2005 (NSW) 55.11 for payment out of moneys which had been paid into court by Perpetual Trustee Company Limited (Perpetual Trustee) under section 98 Trustee Act 1925 (NSW). 2. Perpetual Trustee was the registered mortgagee of real property situated at Long Jetty in New South Wales. The evidence before me demonstrates that the applicant, Mr Andrew John McPherson, was the registered proprietor of that property. 3. From his affidavit I am satisfied, for the reasons that he explains, that he defaulted on his mortgage and there is no question that the mortgagee went into possession and sold the property. Due to his then personal difficulties, Mr McPherson did not respond to letters sent to him by the mortgagee. This was so, even though, on the evidence I have, it would have been very much in his interests to have done so because there was a surplus on sale to which the registered proprietor and mortgagor was entitled, presently standing at around $116,000 including interest which has accrued since the payment in. 4. I am satisfied by considering the title search and the applicant's evidence that there is no other person having an interest in the funds in court. There is no evidence of any unregistered second or subsequent mortgage, for instance. Mr McPherson has said in his affidavit that no other person is or may become beneficially interested in the moneys paid into court. I note, for example, that there is no suggestion of any caveat on title protecting any unregistered dealing when he apparently defaulted on his loan and the notations on the certificate of title say that there are no unregistered dealings. 5. When the matter was first before me today I did express some concern to Mr Hand of counsel, who appears for the applicant, that the evidence sought to be read did not identify Mr McPherson with the property. That defect, as I saw it, in the evidence has now been rectified by a supplementary affidavit of Mr McPherson sworn earlier today which annexes correspondence sent to him at the Long Jetty address. 6. There is a notice from Gadens, the law firm who were acting on behalf of both the lender and mortgage manager, a letter from the mortgage manager dated May 2016 and bank statements for his personal bank account with the National Australia Bank (NAB) showing that address. 7. In the matter of Concrete Injector Bolts Pty Ltd [2012] NSWSC 820, Slattery J at [5] - [8] sets out the principles governing these applications and identified three elements usually necessary to be proved by the applicant for payment out, the first of which is that the registered proprietor must be properly identified. 8. It seems to me in these cases, as I have said already, that for that element to be satisfied it is necessary that the applicant identify himself or herself, not just as a person having the same name as the registered proprietor but rather with the property, especially where there is a large amount involved, as there is here. This is necessary as a practical matter, in my judgment, because people do not ordinarily allow their interests to slide when there are large amounts of money involved and the Court must be astute to make sure that the applicant for payment out is indeed the person apparently entitled. 9. His Honour's other elements need not be considered here as they are not relevant but I note in passing that the third element is that the applicant must prove either that there are no other potential claimants or if there are potential claimants that they have been notified of the claim and there must be evidence that his claim is superior. 10. In any event, I am satisfied in the circumstances of this simple case, that I should make the order sought. I make an order in accordance with the short minute of orders handed up by Mr Hand. The order may be entered forthwith.