Bendigo and Adelaide Bank Ltd v Gorczynski (No 2) [2015] NSWSC 1345

Bendigo and Adelaide Bank Ltd v Gorczynski (No 2) [2015] NSWSC 1345

The bank had been expressly ordered on its own application to pay the nominated surplus fund into court and should not have unilaterally withheld part of that fund; the Court therefore required the withheld amount of $5,253.10 to be paid into court. The narrow and difficult issue concerning the parties' respective entitlement to that fund constituted special reasons justifying a further pro bono referral for Mr Gorczynski under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).

Jurisdiction
Australia
Judgment Date
22 September 2015
Procedural Posture
Procedural and Other Ruling in Common Law Proceedings Concerning Payment Into Court and Referral to the Pro Bono Panel / Duty Judge Hearing on the Defendant/applicant's Application for Referral to the Pro Bono Panel and the Court's Consideration of Compliance With an Earlier Order to Pay Surplus Funds Into Court
Outcome
Order that $5,253.10 be paid into court by the plaintiff within seven days; defendant referred to the pro bono panel for legal assistance.
Legal Topics
['payment Into Court' 'surplus Proceeds of Mortgagee Sale' 'referral to Pro Bono Panel' 'compliance With Court Orders' 'mortgagee Enforcement Costs']
['trusts' 'civil Procedure' 'mortgages'] ['payment Into Court' 'surplus Proceeds of Mortgagee Sale' 'referral to Pro Bono Panel' 'compliance With Court Orders' 'mortgagee Enforcement Costs']

Case Brief

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Procedural Posture

Procedural and Other Ruling in Common Law Proceedings Concerning Payment Into Court and Referral to the Pro Bono Panel / Duty Judge Hearing on the Defendant/applicant's Application for Referral to the Pro Bono Panel and the Court's Consideration of Compliance With an Earlier Order to Pay Surplus Funds Into Court

Legal Issues

  1. 1 ['Whether the plaintiff/respondent should be required to pay into court the amount withheld from surplus proceeds of sale after an earlier order required the identified surplus funds to be paid into court.' 'Whether special reasons justified a further referral of the defendant/applicant to the pro bono panel under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether the withheld amount was claimed as past enforcement costs or as contingent future legal costs, and how that entitlement should later be determined.']

Ratio Decidendi

The bank had been expressly ordered on its own application to pay the nominated surplus fund into court and should not have unilaterally withheld part of that fund; the Court therefore required the withheld amount of $5,253.10 to be paid into court. The narrow and difficult issue concerning the parties' respective entitlement to that fund constituted special reasons justifying a further pro bono referral for Mr Gorczynski under r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW).

Court Disposition

Order that $5,253.10 be paid into court by the plaintiff within seven days; defendant referred to the pro bono panel for legal assistance.

Orders

  • ['Order that $5,253.10 be paid into court by the plaintiff within seven days.' "Mr Gorczynski referred to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in relation to the issue of Mr Gorczynski's and the bank's respective entitlement to the fund to be paid into...