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LOTTWO PTY LTD (IN LIQUIDATION) v TUDO & ORS [2012] SASC 172 (27 September 2012)

Last Updated: 16 October 2012

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal from a Master: Civil)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.

LOTTWO PTY LTD (IN LIQUIDATION) v TUDO & ORS

[2012] SASC 172

Judgment of The Honourable Justice White

27 September 2012

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES

EQUITY - TRUSTS AND TRUSTEES - IMPLIED TRUSTS - RESULTING TRUSTS - WHEN ARISING - JOINT PURCHASE OF LAND

Purchasers, including the appellant, defaulted on loans used to purchase several properties - bank exercised mortgagee's powers of sale - surplus remained after borrowers' liabilities discharged - surplus paid into Court in actions relating to the different properties - three persons applied to a Master to be joined as plaintiffs to the action relating to appellant's property - Master granted the application - appeal against that order for joinder.

Whether each of the persons has an arguable claim in a proprietary interest in the money in Court - whether an arguable case of a resulting trust - whether sufficient pleading or evidence that these three persons provided their monies as purchaser.

Held: appeal dismissed with respect to the respondent Tudo, appeal allowed with respect to the joinder of the other two persons - Tudo has an arguable case that he has a proprietary interest in the money, the other persons did not plead or establish such an arguable case.

Supreme Court Civil Rules 2006 (SA) r 74, r 98, r 99; Real Property Act 1886 (SA) s 223LB; Strata Titles Act 1988 (SA); Community Titles Act 1996 (SA), referred to.

Calverley v Green [1984] HCA 81; (1984) 155 CLR 242; Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538, considered.

LOTTWO PTY LTD (IN LIQUIDATION) v TUDO & ORS

[2012] SASC 172

Supreme Court of South Australia

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LOTTWO PTY LTD (IN LIQUIDATION) v TUDO & ORS [2012] SASC 172 (27 September 2012)

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