Re Commonwealth Bank of Australia [2009] NSWSC 81

Re Commonwealth Bank of Australia [2009] NSWSC 81

Although BMW's recorded writ gave it no security over the land or fund and BMW was only an unsecured judgment creditor, money in Court could be paid to a person entitled to levy execution. The surplus was treated as jointly held, but the Federal Magistrates Court consent orders were construed as directing that the whole surplus be paid first to BMW, and the small amount and BMW's judgment meant no further notice to other possible claimants was required.

Jurisdiction
Australia
Judgment Date
25 February 2009
Procedural Posture
Application for Payment Out of Monies Paid Into Court After Mortgagee's Sale / Hearing of Motion/application in the Equity Division
Outcome
Order that monies paid into court be paid out to an unsecured creditor with a judgment debt.
Legal Topics
['mortgagee Sale Surplus' 'joint Tenancy and Severance' 'writ of Execution' 'execution Against Money Held in Court' 'unsecured Judgment Creditor']
['real Property' 'civil Procedure' "creditors' Remedies" 'equity'] ['mortgagee Sale Surplus' 'joint Tenancy and Severance' 'writ of Execution' 'execution Against Money Held in Court' 'unsecured Judgment Creditor']

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Procedural Posture

Application for Payment Out of Monies Paid Into Court After Mortgagee's Sale / Hearing of Motion/application in the Equity Division

Legal Issues

  1. 1 ['Where a mortgagee sells property owned by more than one person, whether a joint tenancy is severed so that one-third of the monies belongs to each former registered proprietor or whether the joint tenancy still subsists in the money in Court.' 'Whether one can execute against money held in Court.' "Because the only debtors are the first two respondents, whether Mrs Willott's share can be attached." 'Whether notice should be given to other possible claimants.']

Ratio Decidendi

Although BMW's recorded writ gave it no security over the land or fund and BMW was only an unsecured judgment creditor, money in Court could be paid to a person entitled to levy execution. The surplus was treated as jointly held, but the Federal Magistrates Court consent orders were construed as directing that the whole surplus be paid first to BMW, and the small amount and BMW's judgment meant no further notice to other possible claimants was required.

Court Disposition

Order that monies paid into court be paid out to an unsecured creditor with a judgment debt.

Orders

  • ['The monies paid into Court be paid out to BMW.' 'The applicant is entitled to be paid the money in Court, with the precise amount to be determined by the administrative officers of the Court.' 'Liberty to apply if there is any problem.']