Re: Application of Penelope Champion [2020] NSWSC 1023

Re: Application of Penelope Champion [2020] NSWSC 1023

Ms Champion was entitled to immediate payment of $51,958.68 because she was a one half co-owner of the Carrick property as tenant in common at the time of sale and there were no claimants ahead of the registered proprietors. Her claim to the remaining half could not yet be determined because it required proper evidence proving the underlying facts and evidence about attempts to locate or serve the other co-owner, who had not appeared.

Jurisdiction
Australia
Judgment Date
04 August 2020
Procedural Posture
Application for Payment Out of Funds in Court Under Uniform Civil Procedure Rules 2005, R 55.11 / Second Judgment; Motion by Third Applicant Partly Determined and Proceedings Adjourned Part Heard for Further Evidence
Outcome
Orders made permitting $51,958.68 to be paid out to Ms Penelope Champion; proceedings adjourned part-heard for mention to allow further evidence on her claim to the balance of the funds in Court.
Legal Topics
['payment Out of Court' 'funds in Court' 'mortgagee Power of Sale' 'tenants in Common' 'bare Trusts' 'restitution']
['civil Procedure' 'equity' 'trusts and Trustees'] ['payment Out of Court' 'funds in Court' 'mortgagee Power of Sale' 'tenants in Common' 'bare Trusts' 'restitution']

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Procedural Posture

Application for Payment Out of Funds in Court Under Uniform Civil Procedure Rules 2005, R 55.11 / Second Judgment; Motion by Third Applicant Partly Determined and Proceedings Adjourned Part Heard for Further Evidence

Legal Issues

  1. 1 ['Whether Ms Penelope Champion should be paid $51,958.68, being half of the funds remaining in Court, as a one half tenant in common of the sold property.' 'Whether Ms Penelope Champion could obtain the balance of the funds in Court without further evidence proving her claim against the other co-owner and evidence of attempts to locate or serve him.']

Ratio Decidendi

Ms Champion was entitled to immediate payment of $51,958.68 because she was a one half co-owner of the Carrick property as tenant in common at the time of sale and there were no claimants ahead of the registered proprietors. Her claim to the remaining half could not yet be determined because it required proper evidence proving the underlying facts and evidence about attempts to locate or serve the other co-owner, who had not appeared.

Court Disposition

Orders made permitting $51,958.68 to be paid out to Ms Penelope Champion; proceedings adjourned part-heard for mention to allow further evidence on her claim to the balance of the funds in Court.

Orders

  • ['Order that there be paid out of the funds in Court in these proceedings the sum of $51,958.68 (being one half of the amount in Court today which is $103,917.35) to the applicant, Ms Penelope Champion of [address not published].' 'Direct that the applicant, Ms Champion provide to the Supreme Court Finance...