Arida v Arida (No 2) - [2015] NSWCA 226

Court of Appeal
Supreme Court

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. 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).
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 Suitors’ Fund Act 1951 (NSW)
Cases Cited:	Arida v Arida [2015] NSWCA 170 Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600
Category:	Procedural and other rulings
Parties:	Sid Arida, Joseph Arida, George Arida (Appellants) Tony Arida (Respondent)
Representation:	Counsel: M Condon SC / Ms H Mann (Appellants) D Studdy SC / Ms V McWilliam (Respondent) Solicitors: Somerset Ryckmans Lawyers (Appellants) Greenaway & Tohme (Respondent)
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 Arida v Arida (No 2) [2014] NSWSC 579
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arida v Arida (No 2)

Details

AGLC: Arida v Arida (No 2) [2015] NSWCA 226
Case: [2015] NSWCA 226
Decision Date: 11 August 2015

CaseChat Overview and Summary

The case of *Arida v Arida (No 2)* concerned an appeal before the New South Wales Court of Appeal, constituted by Bathurst CJ, Macfarlan JA, and Sackville AJA. The dispute arose after an initial court order requiring the respondent to pay a sum of money to the appellants was set aside on appeal. The central issue was whether the respondent was liable to pay interest on the amount that was originally paid pursuant to the now-vacated court order.

The primary legal question before the Court of Appeal was whether interest was payable on a sum of money that had been paid by the respondent to the appellants under a court order that was subsequently set aside on appeal. This involved considering the principles governing the repayment of funds where the original basis for their payment no longer stood.

The Court of Appeal reasoned that where an order for payment is set aside on appeal, the party who made the payment is entitled to recover that sum. In this context, the Court determined that interest should accrue on the portion of the repaid sum that was effectively held by the appellants from the date the original order was effectively discharged until the date of repayment. The Court applied the principles of restitution and the statutory provisions for the award of interest, specifically referencing s 101 of the *Civil Procedure Act 2005* (NSW) for the calculation of the interest rate. The Court ordered that the original orders be set aside and that the respondent pay the appellants the sum of $497,804.27, along with interest on a specified portion of that sum from 11 July 2015 until payment. The Court also made orders regarding the costs of the various motions and appeals, and granted the respondent a certificate under the *Suitors’ Fund Act 1951* (NSW).

Orders

Orders of the court

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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