Duncan as Trustee for the Bankrupt Estate of Averil Gay Garrett v National Australia Bank Limited

(2006) 95 SASR 208; [2006] SASC 239

Supreme Court of South Australia

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Interrogate

Catchwords

1. Equity
2. › Equitable interests
3. › Moneys paid into court
4. › Equitable lien or charge
5. › Whether party for whose benefit moneys paid into court acquires equitable interest before order for payment out
6. › Payment as condition of interlocutory injunction
1. Equity
2. › Equitable interests
3. › Moneys paid into court
4. › Status of moneys paid into court
5. › Whether payer retains interest
6. › Whether claimant acquires interest
7. › Distinction between interpleader payments and security payments
1. Practice and Procedure
2. › Interlocutory injunctions
3. › Conditions
4. › Payment of money into court as condition of injunction
5. › Payment out upon discontinuance of proceedings
6. › Whether proof of loss required
1. Mortgage
2. › Mortgagee's rights
3. › Power of sale
4. › Interlocutory injunction restraining exercise of power of sale
5. › Conditions for grant
6. › Payment of interest into court as security for mortgagee's entitlement

Quick Take

Whether a party has an equitable interest in moneys paid into court depends on the character and purpose of the payment, not a universal rule that no interest exists until payment out is ordered. Where moneys are paid into court as security for a party's contractual entitlement as a condition of interlocutory relief, the secured party acquires an equitable lien or charge over those moneys. Upon the payer's abandonment of its challenge, the secured party is entitled to enforce its security without proving loss.