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Re Iris McLaren (No 2)

Re Iris McLaren (No 2)

Case [2019] NSWSC 1894 18 December 2019

Restitution

Stay of Proceedings

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Re Iris McLaren (No 2) [2019] NSWSC 1894
Hearing dates: 1 November, 11 December, 18 December 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Equity - Probate List
Before: Parker J
Decision:
Judgment in favour of the Defendant for restitution in the sum of $121,000 (plus interest awarded from 1 December 2016). Defendant’s application for stay of execution of judgment refused.

Catchwords:
RESTITUTION – recovery of money paid under a judgment or order which has been set aside – where defendant ordered to pay the plaintiff’s costs of the proceedings at first instance in 2015 – where defendant paid those costs following assessment – where High Court allowed defendant’s appeal in 2018 and set aside the costs order at first instance – where defendant did not seek an order for repayment of his costs in the Court of Appeal or High Court – whether Court has power to award restitution in circumstances where there is non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 51.19 – restitution awarded notwithstanding non-compliance with rules of court

RESTITUTION – recovery of money paid under a judgment or order which has been set aside – interest to be awarded on recovered sum – whether interest on recovered sum to be awarded from date of payment or the date of first making the application for restitution – interest awarded from date of payment pursuant to Civil Procedure Act 2005 (NSW) s 100
PRACTICE AND PROCEDURE – stay of execution – whether to grant stay of an order for restitution pending an appeal – appeal not presently foreshadowed – stay refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 90, 100, 101
High Court Rules 2004 (Cth), r 42.02
Supreme Court Act 1970 (NSW), s 95
Supreme Court Rules 1970 (NSW), Part 40 r 3, Pt 51AA r 18
Uniform Civil Procedure Rules 2005 (NSW), r 51.19
Cases Cited: Bennett v Jones [1971] 2 NSWLR 355
Cai v Zheng (No 2) [2009] NSWCA 317
Commonwealth v McCormack (1984) 155 CLR 273
Government Insurance Office of NSW v Healey (No 2) (1991) 22 NSWLR 380
Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600
Lee v Mallam (1910) 10 SR (NSW) 876
McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190
Nobarani v Mariconte (No 2) [2017] NSWCA 124
Nobarani v Mariconte [2018] HCA 237; 92 ALJR 806
Nobarani v Mariconte (No 2) [2018] HCA 49; 92 ALJR 1031
Optus Administration Pty Ltd v Wright (No 2) [2017] NSWCA 154
Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
Re the Estate of Iris Mclaren; Mariconte v Nobarani [2015] NSWSC 667
Rodger v Comptoir d’Escompte de Paris (1871) LR 3 PC 465
TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381
Tjiong v Tjiong (No 2) [2018] NSWSC 1981
Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR…

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 Re Iris McLaren (No 2)

Details

AGLC: Re Iris McLaren (No 2) [2019] NSWSC 1894
Case: [2019] NSWSC 1894
Decision Date: 18 December 2019

CaseChat Overview and Summary

The matter of Re Iris McLaren (No 2) involved a dispute over the recovery of money paid under a judgment that had been set aside. The defendant had been ordered to pay the plaintiff's costs of proceedings at first instance in 2015. Following the assessment of those costs, the defendant paid the amount. However, the High Court allowed the defendant's appeal in 2018, setting aside the costs order at first instance. The defendant did not seek an order for repayment of his costs in the Court of Appeal or High Court. The court had to determine whether it had the power to award restitution in circumstances where there was non-compliance with rule 51.19 of the Uniform Civil Procedure Rules 2005 (NSW). The court concluded that it could award restitution despite the non-compliance with the rules of court.

The court was required to decide several legal issues. Firstly, whether it had the power to award restitution of money paid under a judgment or order which had been set aside, despite the non-compliance with the relevant rules of court. Secondly, if restitution was to be awarded, the court had to determine whether interest on the recovered sum should be awarded from the date of payment or from the date of the first application for restitution. The court held that it had the power to award restitution and that interest on the recovered sum should be awarded from the date of payment. The court relied on section 100 of the Civil Procedure Act 2005 (NSW) to determine the date from which interest should be awarded.

The court held that it had the power to award restitution of money paid under a judgment or order which had been set aside. It found that the defendant's non-compliance with rule 51.19 of the Uniform Civil Procedure Rules 2005 (NSW) did not preclude the court from awarding restitution. The court emphasised the importance of ensuring that the party who paid the costs in the first instance was not left out of pocket as a result of the setting aside of the costs order. The court also awarded interest on the recovered sum from the date of payment, in accordance with section 100 of the Civil Procedure Act 2005 (NSW). The court refused to grant a stay of the order for restitution pending an appeal, as no appeal was presently foreshadowed.

Orders