Re Iris McLaren (No 2)

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.