Barel v Barel - [2024] NSWDC 330

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Barel v Barel [2024] NSWDC 330
Hearing dates: 08 August 2024
Date of orders: 09 August 2024
Decision date: 09 August 2024
Jurisdiction: Civil
Before: Fitzsimmons SC DCJ
Decision:
(1) The defendants’ notice of motion filed 28 June 2024 is dismissed.
(2) The defendants are to pay the plaintiff's costs of the motion.

Catchwords:
CIVIL PROCEDURE – application to set aside or vary an order – UCPR r 36.16 - restitution of funds paid under a garnishee order – discretionary considerations

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56, 124A
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(1), 36.16(3A), 41.3

Cases Cited:
Barel v Barel [2023] NSWDC 135
Majak v Rose (No 5) [2017] NSWCA 238
Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283

Category: Procedural rulings
Parties: Elie Barel (Plaintiff)
Linda Barel (First Defendant)
Raphael Barel (Second Defendant)
Representation:
Counsel:
B Smith (Plaintiff)
S A Scott (First and Second Defendants)
Solicitors:
ESY Lawyers (Plaintiff)
Diamond Conway Lawyers (First and Second Defendants)

File Number(s): 2022/00231245
Publication restriction: NIL

Judgment

Introduction

On 21 June 2024, the Court made an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) r 41.3 that the sum of $80,000 be paid to the first defendant from funds paid into Court in accordance with the previous orders of Russell SC DCJ on 3 May 2023.
By notice of motion filed 28 June 2024, the defendants seek an order varying the previous order, the effect of which is to release to the defendants the balance of the funds paid into Court plus interest pursuant to UCPR r 36.16(1) and r 36.16(3A). The application is opposed.
The proceedings have an extraordinary and unfortunate procedural history. The costs incurred to date are likely to be significant in circumstances where the amount in issue is approximately $150,000. The conduct of the litigation to date does not reflect well on either party. The proceedings are listed for hearing in a matter of weeks (4 September 2024) with an estimate of three days. Directions have been made for the filing and serving of affidavit evidence prior to the substantive hearing.
In support of the application, the defendants read the affidavit of Michael Mazzone sworn 28 June 2024. The plaintiff read the affidavit of Eliasson Sayed Yamine sworn 26 July 2024 on the question of costs.

The procedural history

The procedural history of the proceedings prior to the setting aside of a default judgment are recorded in Barel v Barel [2023] NSWDC 135.
The plaintiff is the brother of the second defendant, the late Raphael Barrel, and the brother-in-law of the first defendant Linda Barrel. Linda and Raphael Barrel were husband and wife.
On 5 August 2022, the plaintiff filed a statement of claim, in short seeking the repayment of monies allegedly advanced to the defendants which had not…

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] NSWDC 330
Case: [2024] NSWDC 330
Decision Date: 09 August 2024

CaseChat Overview and Summary

In the matter of Barel v Barel, the defendants sought to set aside or vary a prior order that had resulted in the payment of funds from a third party to the plaintiff. The case was heard in the Supreme Court of Victoria. The defendants contested the order, arguing that the funds should be returned to them as they were not liable to the plaintiff. The plaintiff, however, maintained that the order was valid and that the funds should remain with them.

The legal issues before the court included whether the defendants had a valid basis to challenge the order and, if so, whether the court should exercise its discretion to set aside or vary the order. The court had to consider the provisions of the Uniform Civil Procedure Rules, particularly rule 36.16, which governs applications to set aside or vary orders. Additionally, the court had to weigh the discretionary considerations relevant to the restitution of the funds paid under the garnishee order.

The court found that the defendants had not provided sufficient grounds to justify setting aside or varying the order. The evidence presented did not demonstrate any basis to challenge the validity of the order, and the defendants had not shown any exceptional circumstances that would warrant the court exercising its discretion in their favour. Consequently, the court dismissed the defendants' notice of motion and ordered them to pay the plaintiff's costs of the motion. The court's decision upheld the original order and maintained the restitution of funds to the plaintiff.

Orders

Orders of the court

(1) The defendants’ notice of motion filed 28 June 2024 is dismissed.

(2) The defendants are to pay the plaintiff's costs of the motion.

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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Medium Neutral Citation:	Barel v Barel [2024] NSWDC 330
Hearing dates:	08 August 2024
Date of orders:	09 August 2024
Decision date:	09 August 2024
Jurisdiction:	Civil
Before:	Fitzsimmons SC DCJ
Decision:	(1) The defendants’ notice of motion filed 28 June 2024 is dismissed. (2) The defendants are to pay the plaintiff's costs of the motion.
Catchwords:	CIVIL PROCEDURE – application to set aside or vary an order – UCPR r 36.16 - restitution of funds paid under a garnishee order – discretionary considerations
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56, 124A Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(1), 36.16(3A), 41.3
Cases Cited:	Barel v Barel [2023] NSWDC 135 Majak v Rose (No 5) [2017] NSWCA 238 Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13 State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Category:	Procedural rulings
Parties:	Elie Barel (Plaintiff) Linda Barel (First Defendant) Raphael Barel (Second Defendant)
Representation:	Counsel: B Smith (Plaintiff) S A Scott (First and Second Defendants) Solicitors: ESY Lawyers (Plaintiff) Diamond Conway Lawyers (First and Second Defendants)
File Number(s):	2022/00231245
Publication restriction:	NIL