Re: Application of Ellis and Lucey [2020] NSWSC 567

Re: Application of Ellis and Lucey [2020] NSWSC 567

Ellis and Lucey are entitled to $75,000 paid into Court as deposit under a failed contract to purchase property; they have an equitable lien over the proceeds due to vendor's default and inability to locate David Kersten, with Champion's consent.

Jurisdiction
Australia
Judgment Date
15 May 2020
Procedural Posture
Application for Payment Out of Court / Interlocutory Orders on Notice of Motion
Outcome
Application granted in part; orders made for payment of $75,000 out of Court to Ellis and Lucey; amendment permitted to join Champion to seek remainder of funds.
Legal Topics
['payment Out of Court' 'bare Trusts' "purchaser's Equitable Lien" 'mortgagee Sale' 'tenants in Common']
['civil Procedure' 'equity'] ['payment Out of Court' 'bare Trusts' "purchaser's Equitable Lien" 'mortgagee Sale' 'tenants in Common']

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Procedural Posture

Application for Payment Out of Court / Interlocutory Orders on Notice of Motion

Legal Issues

  1. 1 ['Whether first and second applicants are entitled to funds paid into Court as deposit on failed contract' 'Whether any other persons may be entitled to the funds in Court' 'Whether all reasonable attempts have been made to notify other possible claimants']

Ratio Decidendi

Ellis and Lucey are entitled to $75,000 paid into Court as deposit under a failed contract to purchase property; they have an equitable lien over the proceeds due to vendor's default and inability to locate David Kersten, with Champion's consent.

Court Disposition

Application granted in part; orders made for payment of $75,000 out of Court to Ellis and Lucey; amendment permitted to join Champion to seek remainder of funds.

Orders

  • ['Order from the funds paid into Court the sum of $37,500 paid out to Jeffrey Norm Ellis.' 'Order from the funds paid into Court the sum of $37,500 paid out to Craig Stuart Lucey.' 'Motion to be amended to join Penelope Champion as Third Applicant for balance of funds in Court.' 'Third Applicant to file amended...