Larkin v Merhi - [2016] NSWLC 11

Local Court

New South Wales

Medium Neutral Citation: Larkin v Merhi [2016] NSWLC 11
Hearing dates: 8, 26 April 2016
Decision date: 20 May 2016
Jurisdiction: Civil
Before: Stapleton LCM
Decision:
Order the plaintiff to pay garnisheed moneys to the defendant; the motion for contempt dismissed; the plaintiff to pay the defendant’s costs.

Catchwords: CIVIL PROCEEDINGS – practice and procedure – restitution- moneys paid under garnishee order following default judgment – default judgment set aside – power of Local Court to order restitution of garnisheed moneys in substantive proceedings – civil contempt of court
Legislation Cited: Civil Procedure Act 2005, s 101
Local Court Act 2007, s 30
Uniform Civil Procedure Rules 2005, r 49.20
Cases Cited: Cook v Australian Postal Corporation (unreported, Federal Court of Australia, 30 May 1997)
Coshott v The Owners of SP No 48892 [2008] NSWSC 854
Go Electrical Pty Ltd v Class Electrical Services Pty Ltd [2013] NSWSC 517
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
The Proprietors of Strata Plan 5399 v Feehan (unreported, Supreme Court of NSW, 8 February 1996)
Texts Cited: Halsbury’s Laws of Australia
Category: Procedural and other rulings
Parties: Stephen Larkin (the plaintiff)
Tony Merhi (the defendant)
Representation:
Solicitors:
R Qutami (for the defendant)
Plaintiff in person

File Number(s): 2015/00269357

Judgment

An application for restitution and punishment of contempt

This application concerns a failure by the plaintiff (‘Larkin’) to comply with an order of the Registrar that he pay $59,234 into Court by 4pm on 24 February 2016. That order was made in proceedings 2015/00269397 in the Local Court at Waverley.
By motion dated 18 March 2016 the defendant (‘Merhi’) in those proceedings sought orders that Larkin be found in contempt of court and punished for the contempt for his failure to comply with the order to pay the money into Court.
In due course the matter came before me on 26 April 2016. On that occasion Merhi sought a variation of the order for payment into court, that the sum be paid into Merhi’s solicitor’s trust account by Larkin and that Larkin be punished for his contempt.
On 26 April 2016 I gave leave to Merhi to file his Statement of Charge against Larkin and a copy was given to Larkin in Court. That claim is proceedings 2016/00113138 in the Local Court at Waverley.

A default judgment is set aside after money has been garnisheed

By Statement of Claim filed 14 September 2015 Larkin sued Merhi for $59,000. On 16 October 2015 Larkin swore an affidavit of personal service upon Merhi at an address at Castle Hill on 14 September 2015. On 16 October 2015 Larkin filed an application for default judgment in the sum of $59,234 (inclusive of court costs) and swore an affidavit of debt in support. On 16 October 2015 Larkin filed an application for a garnishee order for the judgment debt against St George Bank Limited. On 7 December 2015 Westpac notified Merhi that it had…

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.

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Details

Case: [2016] NSWLC 11
Decision Date: 20 May 2016

CaseChat Overview and Summary

The plaintiff, Mr Larkin, sought restitution of moneys paid under a garnishee order after a default judgment was set aside. The defendant, Mr Merhi, was the subject of the garnishee order and was subsequently found in contempt of court for failing to pay the moneys. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the Local Court had the authority to order restitution of the garnisheed moneys in the substantive proceedings, or whether it should have been done in a separate contempt proceeding. The court also had to determine whether the plaintiff was guilty of civil contempt of court.

The court held that the Local Court did have the power to order restitution of the garnisheed moneys in the substantive proceedings, as it was an appropriate remedy to rectify the injustice caused by the default judgment. The court found that the plaintiff was not guilty of civil contempt of court, as there was no intention or wilful disregard of the court’s order. The court emphasised the importance of ensuring that parties do not abuse the legal process and that the court’s orders are complied with. The motion for contempt was dismissed, and the plaintiff was ordered to pay the defendant’s costs.

Orders

Orders of the court

Order the plaintiff to pay garnisheed moneys to the defendant; the motion for contempt dismissed; the plaintiff to pay the defendant’s costs.

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.

Medium Neutral Citation:	Larkin v Merhi [2016] NSWLC 11
Hearing dates:	8, 26 April 2016
Decision date:	20 May 2016
Jurisdiction:	Civil
Before:	Stapleton LCM
Decision:	Order the plaintiff to pay garnisheed moneys to the defendant; the motion for contempt dismissed; the plaintiff to pay the defendant’s costs.
Catchwords:	CIVIL PROCEEDINGS – practice and procedure – restitution- moneys paid under garnishee order following default judgment – default judgment set aside – power of Local Court to order restitution of garnisheed moneys in substantive proceedings – civil contempt of court
Legislation Cited:	Civil Procedure Act 2005, s 101 Local Court Act 2007, s 30 Uniform Civil Procedure Rules 2005, r 49.20
Cases Cited:	Cook v Australian Postal Corporation (unreported, Federal Court of Australia, 30 May 1997) Coshott v The Owners of SP No 48892 [2008] NSWSC 854 Go Electrical Pty Ltd v Class Electrical Services Pty Ltd [2013] NSWSC 517 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 The Proprietors of Strata Plan 5399 v Feehan (unreported, Supreme Court of NSW, 8 February 1996)
Texts Cited:	Halsbury’s Laws of Australia
Category:	Procedural and other rulings
Parties:	Stephen Larkin (the plaintiff) Tony Merhi (the defendant)
Representation:	Solicitors: R Qutami (for the defendant) Plaintiff in person
File Number(s):	2015/00269357