Re: Application of Ellis and Lucey [2020] NSWSC 567

Supreme Court New South Wales

Medium Neutral Citation: Re: Application of Ellis and Lucey [2020] NSWSC 567 Hearing dates: 21 April 2020, 12 May & 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Orders made, permitting $75,000 of the funds in Court to be paid out to the first and second applicants. Directions made for the amendment of the first and second applicants' motion for a former registered proprietor of the property to be added as a third applicant and seek payment out of the balance of the funds in Court to her. The Court notes that the applicants do not seek any interest on the funds in Court. Catchwords: CIVIL PROCEDURE – payment out of court – a fund, being the proceeds of sale of certain real property is paid into Court – claim made against the funds where a property that was held by tenants in common is auctioned by a mortgagee in possession – where the first and second applicants for the funds had paid $75,000 directly to the vendor as a deposit for a half-share in the real property – where the whereabouts of the tenant in common who defaulted on the mortgage over the real property is unknown.

EQUITY –Trusts and trustees — Bare trusts - Trustee Act 1925, s 95 – payment into Court – application to pay funds out of Court under Uniform Civil Procedure Rules 2005, r 55.11 – bank exercises its mortgagee's power of sale of a property and after deduction of the first mortgage amount pays the balance of the proceeds of sale into Court – the registered proprietors of the property have not applied for the payment out-of-court – two applicants for payment of $75,000 out-of-court claim this sum is a deposit on a failed contract to purchase the subject property – one of the registered proprietors agrees with the applicants' claim – the other cannot be found – whether the monies should be paid out of Court – no other evidence of other claimants to the funds in Court. Legislation Cited: Trustee Act 1925, s 95 Uniform Civil Procedure Rules 2005, r 55.11 Cases Cited: Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 Hewett v Court (1983) 149 CLR 639 Re La Trobe Capital [2009] NSWSC 1118 Re Salomons [1920] 1 Ch 290 Westpac Banking Corporation v Morris [2014] NSWSC 332 Whitbread & Co Ltd v Watt [1902] 1 Ch 835 Category: Procedural rulings Parties: First applicant: Jeffrey Norm Ellis Second applicant: Craig Stuart Lucey Third applicant: Penelope Champion Representation: First applicant: Jeffrey Norm Ellis in person Second applicant: Craig Stuart Lucey in person Third applicant: Penelope Champion in person File Number(s): 2018/00335070 Publication restriction: No