Medium Neutral Citation: Barel v Barel [2024] NSWCA 257
Hearing dates: 15 October 2024
Date of orders: 30 October 2024
Decision date: 30 October 2024
Before: Gleeson JA at [1];
McHugh JA at [53];
Basten AJA at [54].
Decision:
(1)   Refuse the extension of time to seek leave to appeal from order (4) made by Russell DCJ on 3 May 2023 and order (1) made by Fitzsimmons DCJ on 21 June 2024.
(2)   Refuse leave to appeal from the orders made by Fitzsimmons DCJ on 9 August 2024.
(3)   Summons seeking leave to appeal be dismissed.
(4)   The first and second applicants to pay the respondent’s costs in this Court.

Catchwords:
APPEALS — Leave to appeal — Where garnisheed amount paid into court after default judgment set aside — Civil Procedure Act 2005 (NSW) s 124A — Where defendant applied for payment out of funds in court — Uniform Civil Procedure Rules 2005 (NSW), r 41.3 — Where some funds released — Where defendant applied to vary order and obtain release of balance of funds in court — UCPR r 36.16 — Where variation application dismissed — Whether Court proceeded on misapprehension of facts or relevant law — Where inordinate delay in seeking leave — Whether prejudice occasioned to the respondent — Where underlying proceedings since been heard and judgment reserved — Whether utility in grant of extension of time or grant of leave to appeal

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 16, 56, 57, 58, 124A
District Court Act 1973 (NSW), s 127(2)(a)
Justice Legislation Amendment Act (No 2) 2017 (NSW), Sch 1[5]
Local Court Act 2007 (NSW), s 30
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16(1), 36.16(3A), 41.3, 51.10

Cases Cited:
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Barel v Barel [2023] NSWDC 135
Barel v Barel [2023] NSWDC 330
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57
De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14
Elford v Minty [2017] NSWSC 1455
Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
House v The King (1936) 55 CLR 499; [1936] HCA 40
Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252
Nanschild v Pratt [2011] NSWCA 85
Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659
Proprietors of Strata Plan 5399 v Feehan (1996) 8 BPR 16,211
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA…

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 Barel v Barel

Details

AGLC: Barel v Barel [2024] NSWCA 257
Case: [2024] NSWCA 257
Decision Date: 30 October 2024

CaseChat Overview and Summary

The applicants, Barel and Barel, sought leave to appeal from two District Court of New South Wales decisions. The dispute concerned funds paid into court following a garnishee order, which had been made after a default judgment. The default judgment was subsequently set aside, and the applicants then applied for the release of the garnisheed funds held in court.

The primary legal issues before the Court of Appeal were whether the District Court judge had proceeded on a misapprehension of facts or relevant law when dismissing the applicants' application to vary an earlier order and obtain the release of the balance of the funds. The Court also considered whether to grant an extension of time to seek leave to appeal, given the inordinate delay, the prejudice occasioned to the respondent, and the fact that the underlying proceedings had already been heard and judgment reserved.

The Court of Appeal refused the extension of time to seek leave to appeal from the District Court orders. It found that there was no utility in granting an extension or leave to appeal, particularly in light of the significant delay and the fact that the substantive proceedings had concluded. Consequently, the summons seeking leave to appeal was dismissed, and the applicants were ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Refuse the extension of time to seek leave to appeal from order (4) made by Russell DCJ on 3 May 2023 and order (1) made by Fitzsimmons DCJ on 21 June 2024.

(2) Refuse leave to appeal from the orders made by Fitzsimmons DCJ on 9 August 2024.

(3) Summons seeking leave to appeal be dismissed.

(4) The first and second applicants to pay the respondent’s costs in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Barel v Barel [2024] NSWCA 257

Most Recent Citation

Mehajer v The King (No 2) [2024] NSWCCA 247

Cases citing this decision · 1 of 1 shown

Mehajer v The King (No 2)
[2024] NSWCCA 247 Para 17

…NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215; [1997] HCA 14 per Toohey, Gaudron, McHugh, Gummow and Kirby JJ; Barel v Barel [2024] NSWCA 257 at [46] per Gleeson JA (McHugh JA and Basten AJA agreeing). There is a heavy onus that rests upon the party seeking to reopen a judgment or order: Po…

View all 1 citing cases →

Cases cited in this decision · 22 of 22 shown

Barel v Barel
[2024] NSWDC 330 Para 1

…Ms Barel’s application for a variation of the second judgment so as to release the balance of the funds held in court to Ms Barel ( Barel v Barel [2024] NSWDC 330).…
State of New South Wales v Hollingsworth (No 2)
[2023] NSWCA 283 Para 46

…a judgment or order: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3]. See also: State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]-[22].…
Read v Gitman
[2023] NSWDC 330

…Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Barel v Barel [2023] NSWDC 135 Barel v Barel [2023] NSWDC 330 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57 De L v Director-General, NSW De…
Barel v Barel
[2023] NSWDC 135 Para 1

…judgment and ordered the respondent, Mr Elie Barel, to pay into court the garnisheed amount to abide the outcome of the proceedings ( Barel v Barel [2023] NSWDC 135). By the second judgment given on 21 June 2024, Fitzsimmons SC DCJ ordered the release of some of the funds held in court to Ms Barel. By the third jud…
Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd
[2021] NSWCA 252 Para 8

…Counsel for Ms Barel referred to Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252, where the Court (Payne JA, Bell P and Beech-Jones CJ at CL agreeing) set aside a default judgment on appeal and made an order in the exercise of the discretion under s 124A of the Civil Procedure Act for t…
Elford v Minty
[2017] NSWSC 1455 Para 15

…for legal costs and living expenses was legitimate, as she had no other assets from which that expenditure might be paid (referring to Elford v Minty [2017] NSWSC 1455 at [33], which involved an application for payment out of part of the funds in court to pay a party’s legal fees).…
Secretary, Department of Family and Community Services v Smith
[2017] NSWCA 206 Para 51

…9 August 2024 refusing to vary his earlier order of 21 June 2024: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Leave to appeal should be refused.…
Thomson v Golden Destiny Investments Pty Ltd (No 2)
[2015] NSWSC 1929 Para 15

…d that (i) the Court had a general discretion to determine the release of the funds (referring to Thomson v Golden Destiny Investments Pty Ltd (No 2) [2015] NSWSC 1929, which involved an application for payment out of the funds in court arising from the sale of certain property), and (ii) the proposed use of the fun…
Power v Deputy Commissioner of Taxation (No 2)
[2014] NSWCA 77 Para 46

…5; [1997] HCA 14. However, a heavy onus is imposed on a party who seeks to reopen a judgment or order: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 at [3]. See also: State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 at [17]-[22].…
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 28

…nably clear injustice going beyond what is merely arguable: see, for example, Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]-[38].…
Nanschild v Pratt
[2011] NSWCA 85 Para 24

…These factors are equally applicable to an application to extend time for leave to appeal: Nanschild v Pratt [2011] NSWCA 85 at [40]-[41]. Further, in the present context, the reference to the “fairly arguable case” factor concerns the prospect of obtaining leave to appeal if the extension is granted: Nanschild v…
Windsor v Sydney Medical Service Co-operative Ltd (No. 3)
[2010] FCA 364 Para 21

…ow been set aside. It is said that the principle is correctly summarised by Edmonds J in Windsor v Sydney Medical Service Co-operative Limited (No 3) [2010] FCA 364 at [67]:…
Tomko v Palasty (No 2)
[2007] NSWCA 369 Para 23

…a fairly arguable case, and (4) the extent of any prejudice suffered by the respondent to the application: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA).…
Smith v Department of Family and Community Services
[2004] FCA 1428 Para 51

…of leave to appeal from the interlocutory decision of Fitzsimmons DCJ of 9 August 2024 refusing to vary his earlier order of 21 June 2024: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Leave to appeal should be refused.…
Heydon v NRMA Ltd (No 2)
[2001] NSWCA 445 Para 10

…aside, together with interest: Commonwealth v McCormack (1984) 155 CLR 273 at 276; [1984] HCA 57; Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 at [14]; Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659; Proprietors of Strata Plan 5399 v Feehan (1996) 8 BPR…
De L v Director-General, NSW Department of Community Services (No 2)
[1997] HCA 14 Para 46

…review, or where the interests of justice so require: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215; [1997] HCA 14. However, a heavy onus is imposed on a party who seeks to reopen a judgment or order: Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6 Para 49

…he neglect or default of the applicant as the party seeking the rehearing: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303 (Mason CJ); [1993] HCA 6. Again, that cannot be accepted.…
National Australia Bank Ltd v Bond Brewing Holdings Ltd
[1990] HCA 10

…R 659 at 661 – 662), or any other way in which an erroneous judgment is overturned ( National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386 at 593, 597), varied ( Lee v Mallam (1910) 10 SR (NSW) 876), or set aside ( Mason & Carter’s Restitution Law in Australia , K Mason et al, 2008 at [707…
Metwally v University of Wollongong
[1985] HCA 28 Para 35

…ents of the type referred to at [10] above. As a general rule a party is bound by the conduct of its case: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483 where the joint judgment said of an application to reopen an appeal:…
Commonwealth v McCormack
[1984] HCA 57 Para 10

…stitution with respect to monies paid under a judgment later set aside, together with interest: Commonwealth v McCormack (1984) 155 CLR 273 at 276; [1984] HCA 57; Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 at [14]; Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991)…
House v R
[1936] HCA 40

…2017] NSWSC 1455 Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 House v The King (1936) 55 CLR 499; [1936] HCA 40 Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252 Nanschild v Pratt [2011] NSWCA 85 Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 Produ…
House v The King
63 WN 176

…207; [1997] HCA 14 Elford v Minty [2017] NSWSC 1455 Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 House v The King (1936) 55 CLR 499; [1936] HCA 40 Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252 Nanschild v Pratt [2011] NSWCA 85 Power v Deputy Commissioner of Taxation (N…

Legislation cited in this decision · 4

Civil Procedure Act 2005 (NSW)
124A, 16, 56, 57, 58 6 mentions (from Para 7)
Uniform Civil Procedure Rules 2005 (NSW)
36.15, 36.16(1), 36.16(3A), 41.3, 51.10,... 6 mentions (from Para 2)
Local Court Act 2007 (NSW)
30 2 mentions (from Para 6)
District Court Act 1973 (NSW)
127(2)(a) 1 mention (from Para 2)

Medium Neutral Citation:	Barel v Barel [2024] NSWCA 257
Hearing dates:	15 October 2024
Date of orders:	30 October 2024
Decision date:	30 October 2024
Before:	Gleeson JA at [1]; McHugh JA at [53]; Basten AJA at [54].
Decision:	(1) Refuse the extension of time to seek leave to appeal from order (4) made by Russell DCJ on 3 May 2023 and order (1) made by Fitzsimmons DCJ on 21 June 2024. (2) Refuse leave to appeal from the orders made by Fitzsimmons DCJ on 9 August 2024. (3) Summons seeking leave to appeal be dismissed. (4) The first and second applicants to pay the respondent’s costs in this Court.
Catchwords:	APPEALS — Leave to appeal — Where garnisheed amount paid into court after default judgment set aside — Civil Procedure Act 2005 (NSW) s 124A — Where defendant applied for payment out of funds in court — Uniform Civil Procedure Rules 2005 (NSW), r 41.3 — Where some funds released — Where defendant applied to vary order and obtain release of balance of funds in court — UCPR r 36.16 — Where variation application dismissed — Whether Court proceeded on misapprehension of facts or relevant law — Where inordinate delay in seeking leave — Whether prejudice occasioned to the respondent — Where underlying proceedings since been heard and judgment reserved — Whether utility in grant of extension of time or grant of leave to appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 16, 56, 57, 58, 124A District Court Act 1973 (NSW), s 127(2)(a) Justice Legislation Amendment Act (No 2) 2017 (NSW), Sch 1[5] Local Court Act 2007 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16(1), 36.16(3A), 41.3, 51.10
Cases Cited:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Barel v Barel [2023] NSWDC 135 Barel v Barel [2023] NSWDC 330 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57 De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207; [1997] HCA 14 Elford v Minty [2017] NSWSC 1455 Heydon v NRMA Limited (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 House v The King (1936) 55 CLR 499; [1936] HCA 40 Manhari Recycling Pty Ltd v Compass Global Holdings Pty Ltd [2021] NSWCA 252 Nanschild v Pratt [2011] NSWCA 85 Power v Deputy Commissioner of Taxation (No 2) [2014] NSWCA 77 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659 Proprietors of Strata Plan 5399 v Feehan (1996) 8 BPR 16,211 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA…