Cicolini v Hennessy & Anor [2009] QSC 136

SUPREME COURT OF QUEENSLAND CITATION: Cicolini v Hennessy & Anor [2009] QSC 136 PARTIES: SHARYN LOUISE CICOLINI (Applicant) v TRACEY JOY DARE AND PHILLIP ARTHUR HENNESSY (First Respondent) NATIONAL AUSTRALIA BANK LIMITED ABN 12 004 044 937 (Second Respondent) FILE NO/S: 161 of 2002 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 26 May 2009 DELIVERED AT: Cairns HEARING DATE: 22 May 2009 JUDGE: Jones J ORDER: 1. That all moneys held by the Registrar in this matter, including any interest and accretions, which is included in a list of inactive accounts be paid to the second respondent. 2. That the Registrar is entitled to debit the costs of publishing the list and notice in this matter from the moneys held in Court. [1] This is an application, undertaken without oral hearing, made by the second respondent for an order that the monies held by the Registrar in relation to the matter be paid out to the second respondent. [2] The application is made pursuant to Regulation 31 of the Court Funds Regulation 1999 which provides:- -- 1 of 2 -- 2 “(1) This section applies to a person claiming an entitlement to part of all of the money or securities in an account included in a list of inactive accounts. (2) The person may apply to the court for an order for payment or delivery of the person’s entitlement (a “payment out order”). (3) However, the application may only be made within the time stated in a notice displayed or published under section 30(1) or the extra time the court may allow. (4) The application must be supported by an affidavit of the applicant stating the facts relied on. (5) A copy of the application must be served on the registrar and any other party to the action. (6) On an application for a payment out order, the court may made – (a) A payment out order; or (b) A consolidated fund order; or (c) Any other order the court considers appropriate for the disposal of the money or securities, without an application being made for the purpose.” [3] The application was prompted by the Registrar’s notice to the parties dated 13 January 2009, that the matter would be placed on the inactive list of accounts. There has been no request by the applicant or the first respondent for an oral hearing and there was no appearance by either when the matter was called over on 22 May 2009. The solicitors for the applicant, the remaining solicitors on the record, have lost contact with their client. The applicant, first respondent and the receiver have been served by post with the application and supporting affidavits. [4] The applicant claims entitlement to the monies which were paid into Court by the Court appointed receiver on 12 July 2002. At that time the dispute between the parties had not been resolved. However, on 27 November 2002, Justice Mullins ordered, inter alia, that upon the completion of the receiver’s sale of certain property, the receivers must pay to the second respondent the balance proceeds of that sale plus any other money received or receivable by the receivers in relation to this action. [5] The applicant’s claim was finally dismissed by Justice Muir on 19 December 2002 but the monies held by the Court were not formally disposed of. [6] I am satisfied that the second respondents are properly entitled to the money and in all the circumstances it ought be paid out to it. I will therefore make orders in terms of the draft initialled by me and placed with the papers. -- 2 of 2 --