The matter of Aquatic Air Pty Limited v Siewert (No 3) [2018] NSWSC 624, concerned issues around consent orders seeking the payment of funds from court.
The club discussed the case, the proper procedures for seeking dispersal of funds, and policy reasons for the requirements, as well as how interest amounts might be dealt with.
FACTS AND CASE HISTORY
In the course of the case, a number of payments were made by various parties to the court, and from the court to various other parties, in respect of several matters, including costs.
The following is the club’s attempt to summarise those mentioned in the judgment:
1. 22 August 2012 – Plaintiffs (jointly) paid to Court $180,000 for 1st & 2nd Defendant costs
2. 31 October 2014 – Court paid to $90,848.61 to the 1st & 2nd Defendants for costs
3. 5 December 2013 – 3rd Plaintiff pays $235,000 to the court for 1st & 2nd Defendant’s costs
4. 10 July 2015 – Bank pays $392,370.77 (proceeds of property sale) to court.
5. 18 August 2015 – Order for court to pay defendants $150,000 for Costs.
6. 18 February 2016 – $392,370.77 (proceeds of property sale) $3,964.97 (interest), and the further sum of $110,000 (costs) paid from court to Defendants.
On 23 February 2018 the defendants and third plaintiff made an informal application for orders by consent for the payment of remaining funds, however the court expressed concern that the proposed orders were unsupported by evidence and other insufficiencies.
LEGAL PRINCIPLES
The court reminded the parties of the well established caselaw surrounding the strict requirements required for payment to be made from the court at paragraph 10 of the judgment:
“10. As has been repeatedly emphasised, the entitlement to funds in court must be strictly proved, and notice given to any person which might have a claim on them. [6] Before ordering payment out of funds in court, it is incumbent on the court to be satisfied that all those with a claim on the funds in court have been given notice and an opportunity to be heard, and that the entitlement of those to whom payment is to be made is established. The procedures applicable to payment into and out of court are intended to achieve these ends, and should be strictly followed. Thus in addition to evidence establishing the entitlement of the claimant, the following must be established, by admissible evidence:
6. See Palmer v Orix Australia Corp Ltd & ors [2006] NSWSC 1208; Avco Financial Services Ltd v Commonwealth Bank (1989) 17 NSWLR 679; JKB Holdings v de la Vega [2013] NSWSC 501; Rahme v Benjamin & Khoury Pty (ACN 104 057 043) [2016] NSWSC 774; and In the matter of MINMXT Holdings Pty Limited [2017] NSWSC 1678 at [9]. See generally NSW Court Forms, Precedents & Pleadings, “Payments into & out of Court”, [3435]-[3440].
1. the amount of the funds in court,
2. the circumstances in which they were paid in and by whom,
3. the name and address of each person who has an interest in or claim to the funds (or that there are no other persons with a claim),
4. that notice has been given to each of them, other than those who have consented, and
5. that there are no “stop orders” under UCPR r 41.16.”
OVERVIEW
The decision demonstrates the strict requirements for money to be dispersed from court.
