Boyle v Collins Consolidated Industries Pty Ltd [2006] VSC 89 (9 March 2006)

Last Updated: 16 March 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 2055 of 2001

KERRY ANNE BOYLE	Plaintiff
V
COLLINS CONSOLIDATED INDUSTRIES PTY LTD (ACN 006 091 407)	Defendant

No. 8645 of 2002

CONTROLLED SPRINKLER SUPPLIES PTY LTD (ACN 005 424 902) & ANOR	Plaintiffs
V
KERRY ANNE BOYLE & ANOR	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 MARCH 2006
DATE OF JUDGMENT:	9 MARCH 2006
CASE MAY BE CITED AS:	BOYLE v COLLINS CONSOLIDATED INDUSTRIES PTY LTD
MEDIUM NEUTRAL CITATION:	[2006] VSC 89

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PRACTICE AND PROCEDURE – Moneys held in trust and paid into Court pursuant to s.77(3)(d) of the Transfer of Land Act 1958 - Application for the release of some of the moneys to pay for legal expenses – Whether circumstance analogous to allowance for ordinary living expenses and for legal representation where a Mareva injunction has been granted – Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff in 2055/01; For the First and Second Defendants in 8645/02	Mr I. Upjohn	Tolhurst Druce & Emmerson
For the Defendant in 2055/01; For the Plaintiffs in 8645/02	Mr P. Hayes QC with Mr A. Paterson	Mitrakas Savas & Co

HIS HONOUR:

1 This is an application by Ms Kerry Boyle, the plaintiff in proceeding 2055 of 2001, for an order that moneys presently held in trust pending the outcome of this litigation, or some part of those moneys, or alternatively, moneys paid into Court, or in the further alternative, both the moneys held in trust and those paid into Court be disbursed to her to enable her to pay for her legal representation at the joint trial of this and an associated proceeding, 8645 of 2002, in which Ms Boyle is the firstnamed defendant.

2 The plaintiffs in proceeding 8645 of 2002 allege in their third amended statement of claim that the mortgagees of land at 42 Heyington Place, Toorak paid the balance of the proceeds of sale into Court on or about 2 May 2003 pursuant to s.77(3)(d) of the Transfer of Land Act 1958. The plaintiffs claim an equitable or beneficial interest in those moneys. They also claim an interest in moneys being the balance of proceeds of sale of land at 11 Church Street, Toorak that were paid by agreement into a trust account in the names of Messrs Fetter Gdanski and Messrs Mitrakis Savis & Co as trustees for Ms Boyle and the plaintiffs.

3 These applications come before me by way of appeal in proceeding 2055 of 2001 from an order of Master Kings made 20 February 2006 refusing an oral application for access to the moneys paid into Court, and in proceeding 8645 of 2002 by summons filed 28 February 2006. In that summons Ms Boyle and the secondnamed defendant, Peter Boyle, have sought orders that the sum of $231,000.00, or such other sum as the Court thinks fit, be paid out of the trust account to the Boyle’s solicitors for legal costs. Alternatively, the first and second defendants seek that sum be paid out of funds held in Court by the Senior Master’s Office.

4 Ms Boyle asserts, and for present purposes I accept, that she is presently indigent, and that without recourse to the funds in question she will be unable to afford legal representation at all – and in any event not to a level which would place her upon an equal footing with the representation available to the opposite parties (it was asserted from the Bar table that, if the application is unsuccessful, Ms Boyle will be appearing unrepresented).

5 In a well presented argument put on Ms Boyle's behalf, Mr Upjohn of counsel argued that I should in the exercise of my discretion, and the inherent jurisdiction of the Court to do justice between the parties, make orders of the kind sought by him. He conceded that the right to the moneys in question is genuinely in dispute. He also conceded that, if his client has resort to those moneys or some of them for the purpose of paying for legal representation, and if ultimately she is unsuccessful in the litigation, then property to which ex hypothesi the opposite parties are entitled will be dissipated in circumstances where their recovery will (by reason of his client’s lack of financial resources) be impossible. Put plainly, therefore, the position is that Mr Upjohn asks the Court for orders that his client have access to some or the whole of a disputed fund in circumstances where it may later be shown that his client had no such entitlement, and that the true beneficial owners had by order of the Court been deprived of that which was theirs.

6 Mr Upjohn sought to draw an analogy between his application and orders commonly made on an application for a "Mareva" or "freezing" order. It is of course common on such applications for the judge to allow the respondent to the application to have access to such funds as are necessary to pay the respondent’s ordinary living expenses, and for legal representation in pending proceedings involving the applicant.

7 In my opinion, the analogy is not made out. In the case of an application for a Mareva order, the assets from which the respondent is entitled to draw an allowance for living and like expenses belong to the respondent. In this case, the ultimate right to the funds to which Ms Boyle seeks to have recourse is in dispute. Mr Upjohn has pointed out that the claim by the opposite parties to those funds is based (in the case of one of the two funds in question) on purely equitable principles and (in the case of the other) on a claim which, on its proper characterisation (although it may well be that the opposite parties will in due course submit differently) is also, at least arguably, equitable.

8 It seems to me that this is a distinction without a difference. In the end, it is the right to beneficial ownership which will determine the issue, and if Ms Boyle is unsuccessful, that beneficial ownership will be held to repose elsewhere – with the result that any depletion in the relevant funds in the meantime would amount to an injustice to the parties adversely affected thereby.

9 For these reasons the applications must be refused.