Australia, Sept. 10 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 11:

1. HIS HONOUR: These proceedings relate to moneys that were held in an account or accounts with Australian Military Bank Limited. The claimants over that monies are Kevin Pike and Nathan Pike who are father and son respectively. Without any disrespect I will call these parties Kevin and Nathan in this judgment.

2. The Australian Military Bank Limited brought proceedings by way of interpleader and ultimately the Court granted relief by way of interpleader and ordered that the money held in the relevant account or accounts be paid into court. Subsequently, Kevin and Nathan each filed cross-claims claiming, amongst other things, entitlement to be paid out the money held by the Court.

3. When the matter came on this morning, I raised with counsel for the parties whether there was any issue concerning the Court's jurisdiction to hear the matter. I raised this because, at a minimum, Nathan pleads at paragraph 21, 27(c), 28 (which pleads the existence of an express trust), 33 and 41, reliance on Kevin having held the funds in the account on trust for him. That is an alternate claim, but it nevertheless is a claim that is advanced.

4. Strictly, the asset in dispute was a chose in action against the bank, however the question remained as to who owned the asset. Each party's cross-claims seek relief by way of declaration that that party is the legal and beneficial owner of the sum in issue. It seemed to me that an issue arose as to whether the proceedings were proceedings for an execution of a trust or for a declaration of the subsistence of a trust, to which s 134(1)(e) of the District Court Act 1973 (NSW) applied.

5. I stood the matter down for King's counsel and junior counsel for Nathan and counsel for Kevin to further consider the matter. Ultimately, Mr Ower KC for Nathan submitted that the Court should have no doubt as to its jurisdiction, whilst counsel for Kevin submitted that at the least the Court should have a doubt about its jurisdiction. The reference to doubt arises because of the terms of s 144 of the Civil Procedure Act 2005 (NSW) which provides that:

"(2) If, during proceedings to which this section applies, the District Court decides that it lacks, or may lack, jurisdiction to hear and dispose of the proceedings, the District Court must order that the proceedings be transferred to the Supreme Court."

In Mahommed v Unicomb [2017] NSWCA 65, the Court of Appeal held that the words "may lack" are to be understood as the having of a doubt.

6. Mr Ower KC for Nathan relied on the following: Firstly, the fact that the money had been paid into court meant that the Court had power over the money, including the way in which it is to be distributed, and that empowered the Court to deal with the legal and equitable issues required to be determined in order to make orders paying out the money held by the Court. He relied on paragraph 82 and following in the decision of Reozone Pty Ltd v Santoro [2018] NSWSC 650 and r 43.11 of the UCPR and s 9 of the District Court Act 1973. Secondly, he submitted that Nathan's claim was really a claim falling in the broad jurisdiction granted under s 134(1)(h) of the Act, and not caught by the proviso in parenthesis; that is the claim was not otherwise of a kind to which s 134(1)(e) applies, and if required Nathan would not press relief by way of declaratory relief to buttress that position. I proceed in this judgment on the basis that declaratory relief seeking a declaration of a trust is not being sought in these proceedings.

7. Mr Ower KC referred me to Leeming JA's decision in Great Northern Developments Pty Ltd v Lane in which his Honour deals with s 134 of the District Court Act 1973 in paragraphs 83 to 92 in particular.

8. Counsel for Kevin submitted that the Court does not have jurisdiction by reason of Nathan's alternate claim, or at least there is doubt about that jurisdiction. He submitted that the fact that money had been paid into court does not alter the underpinning causes of action, and the matter remains as one involving the assertion and prosecution of a claim that a trust exists. He further submitted that s 134(1)(h) of the District Court Act 1973, by its reference to liquidated or unliquidated claims should be understood to refer to claims involving debt or damages. He relied on Commonwealth Bank of Australia v Hadfield [2001] NSWSC 440 at paragraph 59.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1964204f5664a5383a02686a)

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