Re CBA [2009] NSWSC 81

In this case the CBA achieved a surplus after exercising power of sale and paid the money into Court. Young J had to decide whether the joint tenancy was severed when the property was sold or whether it subsisted in the  monies held by the Court. His Honour held:

Although there is no actual decision on the point, it seems to me that where there is a surplus on the sale by a mortgagee of property held under joint tenancy the surplus is held as joint tenants. This is thus the status of the fund in Court.

Notwithstanding His Honour noted that money in control of the Court may be subject to a Writ of Execution by an unsecured creditor by leave of the Court. In this case the money was paid to BMW. 

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