Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208

Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208

The third defendant, having not paid out the creditor in full, has no right to subrogation and therefore no equitable interest justifying her joinder as party. Funds in court should be paid out to the plaintiff, as there is no opposition by parties with an interest and the procedural requirements (absence of stop orders) have been satisfied.

Parties
Plaintiff: Christopher John Palmer; First Defendant: Orix Australia Corporation Limited; Second Defendant: Sam Peter Cassaniti; Third Defendant: Michelle Hatzidimitriou; Fourth Defendant: St George Bank Limited; Fifth Defendant: Quest Enterprises (NSW) Pty Ltd
Jurisdiction
Australia
Judgment Date
14 September 2006
Procedural Posture
Application for Payment Out of Court / Ex Tempore Judgment
Outcome
Orders granted as per judgment. Consolidation of proceedings; removal of third defendant; payment out of funds to plaintiff.
Legal Topics
Payments Into and Out of Court, Proper Parties to Proceedings, Subrogation, Practice and Procedure Regarding Funds in Court
Equity Civil Procedure Payments Into and Out of Court Proper Parties to Proceedings Subrogation Practice and Procedure Regarding Funds in Court

Case Brief

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Parties

Christopher John Palmer

Plaintiff

Orix Australia Corporation Limited

First Defendant

Sam Peter Cassaniti

Second Defendant

Michelle Hatzidimitriou

Third Defendant

St George Bank Limited

Fourth Defendant

Quest Enterprises (NSW) Pty Ltd

Fifth Defendant

Procedural Posture

Application for Payment Out of Court / Ex Tempore Judgment

Legal Issues

  1. 1 Whether the funds held in court should be paid out to the plaintiff under Trustee Act s 98(3)
  2. 2 Whether the third defendant has a claim or interest justifying her continued joinder as a party

Ratio Decidendi

The third defendant, having not paid out the creditor in full, has no right to subrogation and therefore no equitable interest justifying her joinder as party. Funds in court should be paid out to the plaintiff, as there is no opposition by parties with an interest and the procedural requirements (absence of stop orders) have been satisfied.

Court Disposition

Orders granted as per judgment. Consolidation of proceedings; removal of third defendant; payment out of funds to plaintiff.

Orders

  • Order that proceedings 1535/06 and 4158/06 be consolidated.
  • Order that Michelle Hatzidimitriou be removed as a defendant.