Barel v Barel - [2023] NSWDC 135

District Court

New South Wales

Medium Neutral Citation: Barel v Barel [2023] NSWDC 135
Hearing dates: 14 April 2023
Date of orders: 3 May 2023
Decision date: 03 May 2023
Jurisdiction: Civil
Before: Russell SC DCJ
Decision:
(1)   Appoint the first defendant to represent the estate of the late Raphael Barel, the second defendant, in these proceedings.
(2)   Set aside the default judgment entered on 9 January 2023 against both defendants.
(3)   Grant leave to the first defendant to file within 14 days a Defence on behalf of both defendants, in accordance with annexure “A” to Exhibit DX 1.
(4) Order pursuant to s 16 of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the sum of $173,727.29, paid to him on 18 January 2023 by force of a garnishee order, together with any interest earned thereon, to the Registrar of the District Court to abide the outcome of these proceedings and to be dealt with in accordance with Part 41 of the Uniform Civil Procedure Rules 2005 (NSW).
(5)   Order each party to pay their own costs of the Notice of Motion filed on 16 February 2023.

Catchwords:
CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – interests of deceased person – appointment of representative of deceased person's estate for purpose of proceedings
CIVIL PROCEDURE – pleadings – leave granted to file defence – where default judgment set aside
CIVIL PROCEDURE – service – substituted service – person under legal incapacity – not disclosed in application
COSTS – costs orders where defendant seeks to set aside default judgment – each party to pay own costs
JUDGMENTS AND ORDERS – default judgment – setting aside – irregularity entered – where default judgment obtained after defendant died – no legal entity to represent defendant – whether liability of other defendant affected – joint and several liability
JUDGMENTS AND ORDERS – default judgment – setting aside – whether bona fide defence on merits – whether explanation for failure to defend – length of delay – whether plaintiff will suffer prejudice – where defendant unaware of proceedings until after default judgment entered – whether garnishee order was irregular and should be set aside – whether there should be restitution of monies obtained by force of garnishee order

Legislation Cited:
Civil Procedure Act 2005 (NSW) ss 16, 117, 123, 124A
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2
Local Court Act 2007 (NSW), s 30
Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 7.10, 7.13, 7.17, 10.12, 36.15, 36.16, Part 41

Category: Procedural rulings
Parties: Elie Barel (Plaintiff)
Linda Barel (First Defendant)
Raphael Barel (Second Defendant)
Representation:
Counsel:
B Smith (Plaintiff)
S McCarthy (First Defendant)
Solicitors:
ESY Lawyers Pty Ltd (Plaintiff)
Diamond Conway (First Defendant)

File Number(s): 2022/231245

Judgment

Introduction

This judgment is in relation to a Notice of Motion filed by the first defendant on 16 February 2023.
The motion concerns a default judgment obtained by the plaintiff against both defendants on 9 January…

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 [2023] NSWDC 135
Case: [2023] NSWDC 135
Decision Date: 03 May 2023

CaseChat Overview and Summary

The matter of Barel v Barel was heard in the District Court of New South Wales. The dispute arose from a default judgment entered against both defendants, Raphael Barel and another party, on 9 January 2023. Raphael Barel had passed away prior to the entry of the default judgment, leading to complications in representing his interests in the proceedings. The case centred around the validity of the default judgment, the propriety of a garnishee order, and the allocation of costs between the parties.

The court was tasked with determining whether the default judgment should be set aside, considering that Raphael Barel had died before the judgment was entered, leaving no legal entity to represent his interests. Additionally, the court needed to decide whether the plaintiff would suffer prejudice if the default judgment was set aside, and if so, what the appropriate remedy would be. The court also had to consider whether there was a bona fide defence on the merits and whether there was a satisfactory explanation for the failure to defend the proceedings.

In its reasoning, the court held that the default judgment should be set aside because there was no legal entity to represent Raphael Barel's interests. The court found that the garnishee order was irregular and should be set aside, and that the monies obtained by force of that order should be paid to the Registrar of the District Court. The court granted leave to the first defendant to file a defence on behalf of both defendants and ordered that each party bear their own costs for the Notice of Motion. The court concluded that the plaintiff was to pay the sum of $173,727.29, together with any interest earned thereon, to the Registrar of the District Court to await the outcome of the proceedings.

The court's final orders included the appointment of the first defendant to represent Raphael Barel's estate, the setting aside of the default judgment, and the payment of specified monies to the Registrar of the District Court. Each party was ordered to bear their own costs for the Notice of Motion, and the first defendant was granted leave to file a defence within 14 days.

Orders

Orders of the court

(1) Appoint the first defendant to represent the estate of the late Raphael Barel, the second defendant, in these proceedings.

(2) Set aside the default judgment entered on 9 January 2023 against both defendants.

(3) Grant leave to the first defendant to file within 14 days a Defence on behalf of both defendants, in accordance with annexure “A” to Exhibit DX 1.

(4) Order pursuant to s 16 of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the sum of $173,727.29, paid to him on 18 January 2023 by force of a garnishee order, together with any interest earned thereon, to the Registrar of the District Court to abide the outcome of these proceedings and to be dealt with in accordance with Part 41 of the Uniform Civil Procedure Rules 2005 (NSW).

(5) Order each party to pay their own costs of the Notice of Motion filed on 16 February 2023.

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 [2023] NSWDC 135
Hearing dates:	14 April 2023
Date of orders:	3 May 2023
Decision date:	03 May 2023
Jurisdiction:	Civil
Before:	Russell SC DCJ
Decision:	(1) Appoint the first defendant to represent the estate of the late Raphael Barel, the second defendant, in these proceedings. (2) Set aside the default judgment entered on 9 January 2023 against both defendants. (3) Grant leave to the first defendant to file within 14 days a Defence on behalf of both defendants, in accordance with annexure “A” to Exhibit DX 1. (4) Order pursuant to s 16 of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the sum of $173,727.29, paid to him on 18 January 2023 by force of a garnishee order, together with any interest earned thereon, to the Registrar of the District Court to abide the outcome of these proceedings and to be dealt with in accordance with Part 41 of the Uniform Civil Procedure Rules 2005 (NSW). (5) Order each party to pay their own costs of the Notice of Motion filed on 16 February 2023.
Catchwords:	CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – interests of deceased person – appointment of representative of deceased person's estate for purpose of proceedings CIVIL PROCEDURE – pleadings – leave granted to file defence – where default judgment set aside CIVIL PROCEDURE – service – substituted service – person under legal incapacity – not disclosed in application COSTS – costs orders where defendant seeks to set aside default judgment – each party to pay own costs JUDGMENTS AND ORDERS – default judgment – setting aside – irregularity entered – where default judgment obtained after defendant died – no legal entity to represent defendant – whether liability of other defendant affected – joint and several liability JUDGMENTS AND ORDERS – default judgment – setting aside – whether bona fide defence on merits – whether explanation for failure to defend – length of delay – whether plaintiff will suffer prejudice – where defendant unaware of proceedings until after default judgment entered – whether garnishee order was irregular and should be set aside – whether there should be restitution of monies obtained by force of garnishee order
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 16, 117, 123, 124A Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2 Local Court Act 2007 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 7.10, 7.13, 7.17, 10.12, 36.15, 36.16, Part 41
Category:	Procedural rulings
Parties:	Elie Barel (Plaintiff) Linda Barel (First Defendant) Raphael Barel (Second Defendant)
Representation:	Counsel: B Smith (Plaintiff) S McCarthy (First Defendant) Solicitors: ESY Lawyers Pty Ltd (Plaintiff) Diamond Conway (First Defendant)
File Number(s):	2022/231245