Re Di Donato & Brown [2015] NSWSC 1923

Re Di Donato & Brown [2015] NSWSC 1923

The forbearance by solicitors to require payment of their fees did not amount to an 'advance', either in actuality or constructively, because there was no real or effective provision or obtaining of funds within the meaning of s 206 of the Duties Act 1997 (NSW); therefore, the charge was not liable to ad valorem mortgage duty beyond $5 and was enforceable in priority to the garnishee claimants.

Parties
1st Plaintiff: Romano Natalino Di Donato; 2nd Plaintiff: Malcolm George Brown; Applicant: Benjamin & Khoury Pty Ltd; Applicant: Lisa June Mahoney; Applicant: Dennis Anthony Mahoney; Applicant: Frederick George Rix; Applicant: R W Washington (Estate)
Jurisdiction
Australia
Judgment Date
18 December 2015
Procedural Posture
Application Regarding Distribution of Funds Paid Into Court / Decision on Competing Claims and Priorities; Reasons for Orders
Outcome
Funds in Court to be paid to Benjamin & Khoury Pty Ltd, with portion to Estate of R W Washington per agreement; other applications dismissed; costs orders made.
Legal Topics
Mortgage Duty, Solicitors' Costs Agreements, Garnishee Notices, Priorities Between Claims, Forbearance to Require Payment, Stamps and Enforceability of Charges
Equity Civil Procedure Mortgage Duty Solicitors' Costs Agreements Garnishee Notices Priorities Between Claims Forbearance to Require Payment Stamps and Enforceability of Charges

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Parties

Romano Natalino Di Donato

1st Plaintiff

Malcolm George Brown

2nd Plaintiff

Benjamin & Khoury Pty Ltd

Applicant

Lisa June Mahoney

Applicant

Dennis Anthony Mahoney

Applicant

Frederick George Rix

Applicant

R W Washington (Estate)

Applicant

Procedural Posture

Application Regarding Distribution of Funds Paid Into Court / Decision on Competing Claims and Priorities; Reasons for Orders

Legal Issues

  1. 1 Whether a charge created by a solicitors' costs agreement secured an 'advance' within s 206 of the Duties Act 1997 (NSW)
  2. 2 Whether a forbearance to require payment was a 'constructive' provision or obtaining of funds and therefore an advance
  3. 3 Priority between a charge created by solicitors' costs agreement and garnishee notices served by judgment creditors

Ratio Decidendi

The forbearance by solicitors to require payment of their fees did not amount to an 'advance', either in actuality or constructively, because there was no real or effective provision or obtaining of funds within the meaning of s 206 of the Duties Act 1997 (NSW); therefore, the charge was not liable to ad valorem mortgage duty beyond $5 and was enforceable in priority to the garnishee claimants.

Court Disposition

Funds in Court to be paid to Benjamin & Khoury Pty Ltd, with portion to Estate of R W Washington per agreement; other applications dismissed; costs orders made.

Orders

  • Moneys paid into Court and interest to be paid out to Benjamin & Khoury Pty Ltd.
  • Benjamin & Khoury Pty Ltd to pay 14.184% of such funds to Carolyn McEwan Washington and Elizabeth Carolyn Washington, representatives of the estate of the late Mr Washington.