• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Category: Principal judgment

Parties: Reece Australia Pty Ltd (Plaintiff)
Coutts Lawyers & Conveyancers Pty Ltd (First Defendant)
Business Fuel Finance Pty Ltd (Second Defendant)
Colin James A Robinson (Third Defendant)
Kate Elizabeth Xiberras (Fourth Defendant)
Terrence Michella Hatcher (Fifth Defendant)
James Thomas Moon (Sixth Defendant)

Representation: Counsel:
B May (Plaintiff)
M Daniels (Second Defendant)
M Bennett (Third Defendant)
M Moon (Self-represented)
Solicitors:
Results Legal (Plaintiff)
Elliott May Lawyers (Second Defendant)
Marsdens Law Group (Third Defendant)

File Number(s): 2025/00427988

Publication restriction: Nil

Judgment

INTRODUCTION – EX TEMPORE (REVISED)

1. There are currently proceeds of sale of $404,196.35 held in court following the sale of a property at XX Milford Road, Ellis Lane, New South Wales (Property). The application before me is to determine to whom those proceeds should be paid.

2. There are seven parties to the proceedings, being:

3. the plaintiff, Reece Australia Pty Ltd;

4. the first defendant, Coutts Lawyers & Conveyancers Pty Ltd;

5. the second defendant, Business Fuel Finance Pty Ltd;

6. the third defendant, Colin James A Robinson;

7. the fourth defendant, Kate Elizabeth Xiberras;

8. the fifth defendant, Terrene Michelle Hatcher; and

9. the sixth defendant, Thomas James Moon.

10. The only active parties in the proceedings are Reece, Business Fuel and Mr Robinson, who assert competing priorities to the funds held in court but have now reached a consent position as to the amounts which should be paid to each of them.

11. Coutts Lawyers acted on the sale of the Property, paid the net proceeds into court and have taken no further part in the proceedings.

12. Ms Xiberras and Ms Hatcher have taken no active part in the proceedings. I am satisfied that each of them has been served with all relevant court documents and the evidence on which the active parties rely in support of the application to pay the proceeds out of court. I am also satisfied that each of Ms Xiberras and Ms Hatcher are on notice of the hearing today. Ms Xiberras and Ms Hatcher did not appear at the hearing today, including after they were called outside court.

13. Mr Moon, who was the owner of the Property, has filed a submitting appearance but has paid the court the courtesy of appearing at the hearing today.

LEGAL PRINCIPLES

7. Under r 55.11(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the court has the power to direct payments out of funds held in court.

8. An applicant seeking payment out of court of funds under r 55.11 of the UCPR must satisfy the following four requirements (Council of the City of Sydney v Baboon Pty Limited [2020] NSWSC 1480, Rees J at [9]):

9. identify the person who has the primary beneficial interest in the funds and the nature of their entitlement;

10. identify any other persons beneficially interested in the funds and the nature of their respective entitlements;

11. notify all potential fund claimants of the application; and

12. have either a beneficial entitlement prior to the other interested parties or the consent of the other interested parties to the payment.

13. These matters were articulated in more detail in Commonwealth Bank of Australia v The Estate of the Late Mahmoud Slieman [2010] NSWSC 661 by Slattery J at [8]–[11] as follows:

[8] An applicant under UCPR r 55.11 must establish three matters to justify an order for the payment of money out of Court. The first is to identify the person who is primarily entitled to any funds paid into Court and the basis of that entitlement. It is fundamental that the person be identified from the best evidence available, so that the Court can be sure that the person has been given appropriate notice of the application and can if necessary contest it.

[9] The second matter that needs to be proved by a claimant is that he or she is not merely an unsecured creditor against the person primarily entitled to the fund but is a person who has an beneficial interest in the very fund that has been paid into Court. The same evidence that demonstrates a person’s primary entitlement to the funds in Court often establishes this second matter.

[10] Thirdly, it is necessary for an applicant to identify the other potential claimants to the fund in Court and to prove that those persons were notified of its claim. Those persons may consent to the claim. Alternatively, the applicant may prove that those persons either do not have valid claims against the fund or that their claims do not have priority over the applicant’s claims.

[11] The Court requires strict proof as to who has the entitlement to the funds in Court. There is a heavy burden placed on a party seeking payment of money out of court under Trustee Act s 98 and UCPR r 55.11. It is necessary for that party not only to prove his or her entitlement to the funds but also to prove that all other potential claimants to the funds in Court have been properly notified. Otherwise there is a risk of incorrect payments being made.

10. In circumstances where another potential claimant does not consent to the application, the applicant must prove that the alternative claimant does not have a valid claim against the fund, requiring strict proof and having regard to the court’s concern as to the risk of incorrect payments: Re C & L Cameron Pty Limited [2012] NSWSC 676, Ward J at [122].

11. In Cameron, Ward J at [128] continued:

In my view, what Rule 55.11 requires is a consideration of whether there are other competing claims and, if there are, then as Slattery J pointed out in Ruth Chong, it is a matter for the Court to determine their validity and the competing priorities between any valid claims. Thus, I do not accept that the present enquiry necessarily stops at the point at which an arguable claim has been established though it may, depending on the issue, be necessary or appropriate to defer a final determination of the validity of that claim to another forum. If the evidence before the Court is such that the validity of the claim can be determined on the very payment out application, then the statutory mandate for the just, quick and cheap resolution of the real issues in dispute would support the conclusion that a final determination as to that claim should then be made. …

THE INTERESTS OF ALL POTENTIAL CLAIMANTS IN THE FUNDS

The interest of Reece

12. In the amended summons filed 23 June 2026, Reece claims an interest in the funds held in court pursuant to a guarantee and indemnity dated 29 September 2020 between Reece, M & K Plumbing (NSW) Pty Ltd and Mr Moon in which Mr Moon guaranteed the obligations of M & K and granted a security interest in the Property to Reece by way of an equitable charge. On 16 August 2024, Reece lodged a caveat on the title to the Property.

The interest of Business Fuel

13. In the second cross-summons filed 26 February 2026, Business Fuel claims an interest in the funds held in court pursuant to a facility agreement dated 19 January 2024 between Business Fuel, M & K and Mr Moon, in which Mr Moon granted an equitable charge to Business Fuel over the Property. On 24 January 2024, Business Fuel lodged a caveat on the title to the Property. Business Fuel claims priority as against Reece.

The interest of Mr Robinson

14. In the third cross-summons filed 6 March 2026, Mr Robinson claims an interest in the funds held in court arising from a loan agreement under which he made an advance to Mr Moon to facilitate the purchase of the Property for which Mr Moon guaranteed repayment and granted an equitable charge to Mr Robinson over the Property. On 22 May 2024, Mr Robinson lodged a caveat on the title to the Property. Mr Robinson does not claim any priority as against Reece.

The interests of Ms Xiberras and Ms Hatcher

15. As I mentioned above, neither Ms Xiberras nor Ms Hatcher have taken any active part in the proceedings, filed any evidence, made any submissions or appeared at the hearing today. They have, however, been placed on notice of today’s hearing and have received all of the court documents and evidence relevant to the determination of it.

16. I am conscious that before making any order that may affect the respective interests of Ms Xiberras and Ms Hatcher, I must proceed fairly to them as unrepresented litigants in the manner outlined in Take Off Opportunities Pty Ltd atf The Clear Runway Trust v Susan Quinn Pty Ltd atf The Susan Amelia Quinn Trust [2025] NSWSC 231 by Griffiths AJ at [14]–[18]:

[14] In these circumstances, r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that the Court may either proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or adjourn the trial. In circumstances where I am satisfied that Susan Quinn has been notified of the progress of the proceedings on multiple occasions, including of the final hearing, I considered it appropriate to proceed with the hearing. As Black J noted in Re Central Management (NSW) Pty Ltd (in liq) [2017] NSWSC 1258 at [2], a defendant’s right to be heard is “not a right to frustrate the hearing of proceedings by not attending them”.

[15] In adopting this course, I note r 36.16(2)(b) of the UCPR, which empowers the Court to set aside or vary a judgment or order after it has been entered if “it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order” (emphasis added).

[16] Notwithstanding Susan Quinn’s absence, Take Off must “prove its claim so far as the burden of proof lies upon it and if it proves its claim is entitled to the relief claimed and such other relief as is consistent therewith” (Re Anton Fabrications (NSW) Pty Ltd — Bentley Smythe Pty Ltd v Anton Fabrications (NSW) Pty Ltd [2011] NSWSC 186; 248 FLR 384 at [11] per Ward J (as the President then was)).

[17] I am satisfied that Susan Quinn has been served with all relevant documents and been afforded ample opportunity to attend and be heard.

[18] The defendant’s non-attendance does not mean that the plaintiff becomes liable to a more demanding obligation to assist the Court as would apply if, for example, the defendant was absent because the Court was dealing with an ex parte application. I respectfully agree with Barrett J’s observations in Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [68] where, after referring to several authorities, including Isaacs J’s observations in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72 at 681 concerning a “most serious responsibility” imposed upon a party who comes to court seeking relief in the absence of the other party, Barrett J stated:

It seems to me that the “most serious responsibility” to which Isaacs J referred is attracted only in those cases where a party has not been given proper notice of a hearing and is absent when an application is pressed. In those cases, the applicant is obliged to bring to the court’s attention all relevant facts known to the applicant, including those unhelpful to the applicant’s case. That “most serious responsibility” is not attracted if the defendant has been served and given ample opportunity to attend. Such a defendant’s non-attendance does not give rise to an entitlement to some especially favourable treatment. The plaintiff is, in such a situation, under the generally prevailing obligation to assist the court and not to mislead it. If the case is one of interlocutory hearing of the “limited inquiry” type to which Young J referred, the duty to assist the court is particularly pronounced. But where, as here, the application is an application for final relief and the defendant has not only received the originating process and supporting affidavit but also presented a somewhat relaxed demeanour in the face of the claim (see paras [42]–[45] above), it seems to me that the duty or expectation is confined to honestly [sic], frankness and absence of conduct apt to mislead the court in relation to any material matter.

17. A charge involves a proprietary interest held by way of security, which can arise from contractual rights as an equitable charge if the objectively ascertained contractual intention is to confer a proprietary interest as security for a present or future debt: Cinema Plus Ltd (Administrators Appointed) v ANZ Banking Group Ltd (2000) 49 NSWLR 513, Giles JA at [144].

18. In Roberts v Investwell Pty Ltd (In liq*)* (2012) 88 ACSR 689; [2012] NSWCA 134, Bathurst CJ at [26] said (emphasis in bold):

No particular form of words is required to create such an equitable mortgage as it is founded on a contract between the parties. The contract may be expressed or implied: see Gough supra at 17 and the cases cited therein. An equitable charge, by contrast, does not necessarily create an equitable mortgage. What, however, is necessary is that property of the chargor is appropriated to the chargee for payment of a debt and the chargee has a present right to have it made available for the payment of its debt. The availability of equitable remedies to enforce that right gives the chargee a proprietary interest by way of security in the property charged.

19. Ms Xiberras filed a caveat on 17 September 2024 claiming an interest in the Property (erroneously described as a “lien”) pursuant to a loan agreement. There are no words of charge in the loan agreement that sought to claim any form of security over the Property. I am not satisfied that there is any language in the loan agreement that could be construed as appropriating the Property to Ms Xiberras for repayment of any amounts advanced under the loan agreement.

20. In relation to Ms Hatcher, although she filed the caveat on the title to the Property on 4 March 2025, claiming an “equitable interest in the property in connection with the contributions made to the property and the household”, Ms Hatcher has not filed any claim, any evidence or any submissions, so I am unable to conclude that there is any substance to any claim by her to the funds held in court.

21. On the material before me, I am satisfied that there is no valid claim to the funds held in court by either of Ms Xiberras or Ms Hatcher.

Consent position between Reece, Business Fuel and Mr Robinson

22. Reece, Business Fuel and Mr Robinson have agreed on the amounts which should be paid to each of them from the funds held in court. Accordingly, it is not necessary for me to make any determination of their competing priorities to those funds as equitable chargees.

CONCLUSIONS

23. Arising from the matters set out above, I am satisfied of each of the following matters:

24. Reece, Business Fuel and Mr Robinson are the only parties who assert a proprietary entitlement to the funds held in court.

25. There are no other competing claimants to the surplus funds who are not already a party to these proceedings.

26. Reece, Business Fuel and Mr Robinson have established their respective proprietary entitlements to the funds held in court.

27. Ms Xiberras and Ms Hatcher have not established any proprietary entitlement to the funds in court and there is no material to suggest that they do.

28. There are no other obstacles preventing the payment out of the funds held in court to each of Reece, Business Fuel and Mr Robinson in the manner in which they have agreed between them.

ORDERS

24. I make the following orders:

25. Order that the funds presently held in court, being the net sale proceeds in the amount of $404,196.35 (Funds) be apportioned and distributed as follows:

(a) to the plaintiff, Reece Australia Pty Ltd ACN 004 097 090, the amount of $95,000.00; (b) to the second defendant, Business Fuel Finance Pty Ltd ACN 629 419 021, the amount of $222,500.00; (c) to the third defendant, Colin James A Robinson, the amount of $86,696.35 and any residual including accrued interest on the Funds.

2. Order that payment of the amounts referred to in order (1) above is to be made by the court to each of the bank accounts to be nominated by the plaintiff, the second defendant and the third defendant respectively.
3. The third defendant’s cross-summons filed 6 March 2026 is dismissed as against the first defendant with no order as to costs.
4. Order that the proceedings as between all parties be otherwise dismissed with no order as to costs.

**********