If a trustee, receiver or executor is uncertain who is entitled to certain funds they can pay those funds into court. These funds could be proceeds from the sale of property, funds from the dissolution of a trust, funds remaining in a bank account, or they could be the remaining funds of an estate, When these funds are paid into court the trustee files a summons in the Equity Division, together with an affidavit explaining what the fund is and listing any potential claimants. The potential claimants are not usually named as defendants, however a copy of the summons and affidavit will usually be served on persons known by the trustee to have a possible claim to the funds.
If a person wishes to make a claim on the whole or a proportion of the funds paid into court, this is done by filing a notice of motion in the existing case (use the same case number as was on the summons). If there are other known potential claimants for the funds these should be named as respondents on the notice of motion (
Form 20 on the Uniform Civil Procedure Rules Civil Forms webpage). An affidavit in
Form 40 should also be filed which sets out the evidence establishing the basis of the claim for the funds. The notice of motion and affidavit should be served on the named respondents. The Notice of Motion will be listed before the registrar who may give further directions to ensure that the matter is ready or who will refer it to a judge to consider the application. If all the potential claimants can agree on how the funds should be apportioned a consent order (
Form 44) should be prepared.
The Supreme Court's preferred method of payment is by Electronic Funds Transfer (EFT) to a bank account nominated by the party entitled. Once the order for payment has been made, clients should contact the Registry in writing and supply the appropriate bank account details for the transfer (the BSB, account number and account name will need to be provided).
Please note: in accordance with Part 41.11 (Authority of recipient) of the
Uniform Civil Procedure Rules 2005, funds in court may not be paid out of court except to the party entitled or (on the party's written authority or by order of the court) to the party's solicitor.
staff in the Court's Finance section