Arida v Arida (No 2)
[2015] NSWCA 226
•11 August 2015
|
New South Wales |
Case Name: | Arida v Arida (No 2) |
Medium Neutral Citation: | [2015] NSWCA 226 |
Hearing Date(s): | On the papers |
Decision Date: | 11 August 2015 |
Before: | Bathurst CJ, Macfarlan JA, Sackville AJA |
Decision: | 1. Set aside Orders 1 and 2 made by Slattery J on 13 May 2014. |
Catchwords: | JUDGMENTS – interest – money paid pursuant to court order set aside on appeal – whether interest payable on the amount to be repaid |
Legislation Cited: | Civil Procedure Act 2005 (NSW), s 101 |
Cases Cited: | Arida v Arida [2015] NSWCA 170 |
Category: | Procedural and other rulings |
Parties: | Sid Arida, Joseph Arida, George Arida (Appellants) |
Representation: | Counsel: |
File Number(s): | 2014/211401; 2014/131524 |
Decision under appeal: | |
Court or Tribunal: | Supreme Court of New South Wales |
Citation: | Arida v Arida [2014] NSWSC 395 |
Date of Decision: | 4 April 2014; 13 May 2014 |
Before: | Slattery J |
File Number(s): | 2011/109699; 2010/266736 |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENT
THE COURT: The Court delivered judgment in this appeal on 26 June 2015.[1] The appeal was allowed and the parties were directed to bring in short minutes of order giving effect to the reasons for judgment. In the absence of agreement each party was directed to file proposed short minutes of order, together with brief written submissions.
[1] Arida v Arida [2015] NSWCA 170 (Principal Judgment).
The appellants propose the following orders:
“1. Appeal allowed.
2. Orders 1 and 2 made by Slattery J on 13 May 2014 are set aside.
3. The respondent is to pay to the appellants:
a. the sum of $510,282.34; and
b. interest on the sum of $454,087.46 calculated from 11 July 2015 to the date of payment at the rate prescribed from time to time for the purposes of s 101 of the Civil Procedure Act2005 (NSW).
4. The respondent is to pay the appellants’ costs of and incidental to their motion filed on 5 March 2014.
5. The respondent is to pay the appellants’ costs of the appeal.
6. The respondent, if otherwise eligible, is to have a certificate under the Suitors’ Fund Act1951 (NSW).”
It was accepted by the appellants that the sum in dispute was $454,087.46.[2] The primary Judge (Slattery J) ordered that the sum of $479,862.82 held by the trustees for sale be paid to the respondent.[3] There appears to be no dispute that this amount was paid to the respondent on 22 May 2014.
[2] Principal Judgment at [21].
[3] Arida v Arida (No 2) [2014] NSWSC 579 (Supplementary Judgment) at [44(1)].
The respondent does not dispute that in consequence of the appeal being allowed he is obliged to repay the sum of $454,087.46 to the appellants.
The parties are in dispute as to whether the respondent should be required to pay interest on the sum to be repaid. The appellants rely on the general principle that a party who has paid money pursuant to a judgment or court order which is later set aside has a common law right to restitution of the money so paid, with interest.[4] They point out that the practice in this Court is to award restitutionary interest at the rates payable on judgments, unless there are special circumstances.[5]
[4] Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600 at [12]-[14] (Mason P, Beazley JA and Ipp AJA agreeing).
[5] Heydon v NRMA Ltd (No 2) at [32]-[33].
The respondent has not advanced any cogent reason why he should not be required to pay interest on the money that was paid to him pursuant to an order of the Court which is now to be set aside. The orders should therefore provide for the payment of interest by the respondent on the amount to be repaid.
The appellants’ proposed Order 3a requires the respondent to pay $510,282.34. This sum comprises $454,087.46 plus $56,194.88, being interest on $454,087.46 at the rates applicable to judgment debts under s 101 of the Civil Procedure Act 2005 (NSW) for the period from 25 January 2014 until 10 July 2015.
The appellants’ written submissions do not explain why interest is claimed from 25 January 2014, rather than the date the trustees paid the moneys held by them to the respondent (22 May 2014). However, the explanation is presumably that settlement of the purchase of the Church Street Property took place on 24 January 2014.
Since the respondent had use of the money only from 22 May 2014, interest should run from the following day. On the calculations provided by the appellants, interest on $454,087.46 at the prescribed rates for the period 23 May 2014 to 10 July 2015 is $43,716.81. Thus the amount inclusive of interest payable by the respondent as at 10 July 2015 is $497,804.27.
In the Principal Judgment, an order was made dismissing the appellants’ summons for leave to appeal filed on 27 June 2014. There is no reason why the appellants should not pay the respondent’s costs of that summons.
Since an order has already been made allowing the appeal, it is unnecessary to make that order again. Thus the orders that should be made are as follows:
1. Set aside Orders 1 and 2 made by Slattery J on 13 May 2014.
2. Order the respondent to pay the appellants:
(a) the sum of $497,804.27; and
(b) interest on the sum of $454,087.46 calculated from 11 July 2015 until the date of payment at the rate prescribed from time to time for the purposes of s 101 of the Civil Procedure Act 2005 (NSW).
3. The respondent pay the appellants’ costs of and incidental to their motion filed on 5 March 2014.
4. The appellants pay the respondent’s costs of the summons for leave to appeal filed on 27 June 2014 in proceedings 2014/131524.
5. The respondent pay the appellants’ costs of the appeal in proceedings 2014/211401.
6. The respondent, if otherwise eligible, is to have a certificate under the Suitors’ Fund Act 1951 (NSW).
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