Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808

Perpetual Trustees Company Ltd; Application of Chen [2010] NSWSC 808

Mr Chen satisfied the requirements for payment out because the potential claimants to the proceeds had been identified and notified, he had a proprietary interest in the surplus proceeds as one of the registered proprietors and mortgagors, there were no other secured interests, and the evidence showed an agreement or mutual conduct by Mr Chen and Ms Li sufficient to sever the joint tenancy in the proceeds. Mr Chen was therefore entitled to one half of the amount paid into Court and one half of the accrued interest.

Jurisdiction
Australia
Judgment Date
20 July 2010
Procedural Posture
Application for Payment Out of Funds Paid Into Court Under Part IV of the Trustee Act 1925 (nsw) / Determination of Mr Chen's Notice of Motion and Asic's Notice of Motion
Outcome
Mr Chen's Notice of Motion was granted to the extent that one half of the funds paid into Court and one half of the accrued interest were ordered to be paid to him; ASIC was granted leave to discontinue its Notice of Motion.
Legal Topics
['funds Paid Into Court' 'payment Out of Court' 'mortgagee Sale Surplus Proceeds' 'joint Tenancy' 'severance of Joint Tenancy' 'asset Preservation Orders']
['civil Procedure' 'trusts' 'real Property'] ['funds Paid Into Court' 'payment Out of Court' 'mortgagee Sale Surplus Proceeds' 'joint Tenancy' 'severance of Joint Tenancy' 'asset Preservation Orders']

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Procedural Posture

Application for Payment Out of Funds Paid Into Court Under Part IV of the Trustee Act 1925 (nsw) / Determination of Mr Chen's Notice of Motion and Asic's Notice of Motion

Legal Issues

  1. 1 ['Whether Mr Chen established the matters required for payment out of funds paid into Court under UCPR r 55.11.' 'Whether Mr Chen had a proprietary interest in the surplus proceeds of sale of the Lugarno property.' 'Whether the joint tenancy between Mr Chen and Ms Li had been severed so that Mr Chen was entitled to one half of the proceeds.' "How ASIC's Notice of Motion should be dealt with after ASIC indicated it would not proceed with it."]

Ratio Decidendi

Mr Chen satisfied the requirements for payment out because the potential claimants to the proceeds had been identified and notified, he had a proprietary interest in the surplus proceeds as one of the registered proprietors and mortgagors, there were no other secured interests, and the evidence showed an agreement or mutual conduct by Mr Chen and Ms Li sufficient to sever the joint tenancy in the proceeds. Mr Chen was therefore entitled to one half of the amount paid into Court and one half of the accrued interest.

Court Disposition

Mr Chen's Notice of Motion was granted to the extent that one half of the funds paid into Court and one half of the accrued interest were ordered to be paid to him; ASIC was granted leave to discontinue its Notice of Motion.

Orders

  • ['That one half of the amount paid into Court by the Perpetual Trustee Company Limited in proceedings 2010/72853, together with one half of the interest accrued thereon, be paid out to Vincent Chen.' "No order as to the costs Mr Chen's Notice of Motion." 'Note that the issue of costs between Mr Chen and ASIC will be...