State of New South Wales v Younis

[2014] NSWCA 56

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Younis [2014] NSWCA 56

Hearing dates:

10 March 2014

Decision date:

10 March 2014

Before:

Basten JA

Decision:

1. Order that the Registrar of the District Court take such steps as are necessary to pay the sum of $90,000, being part of the sum of $437,454 paid into court as a result of the orders made by Levy DCJ on 12 November 2010, into the S Stojanovic Trust Account with the Commonwealth Bank, Liverpool.

2. Order that the appellant and first respondent pay the costs of the second and third respondents, Mr and Mrs Younis, of the motion, such costs to be payable upon the determination of the proceedings in this Court.

3. Otherwise dismiss the notice of motion filed 26 February 2014.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - application to release money - applicants ordered to pay into District Court money for possible damages - damages awarded below amount paid into Court - no challenge to adequacy of damages -jurisdiction to make orders with respect to money held in District Court

Legislation Cited:

Supreme Court Act 1970 (NSW), s 23

Category:

Procedural and other rulings

Parties:

State of New South Wales (Appellant)
Hayam Abed (First Respondent)
Waffa Younis (Second Respondent)
Khalil Younis (Third Respondent)

Representation:

Counsel:

Mr D F Villa (Appellant)
Ms E Grotte (First Respondent)
Mr R Sweet (Second and Third Respondents)
Solicitors:

Crown Solicitor (Appellant)
Kheir Lawyers (First Respondent)
S Stojanovic (Second and Third Respondents)

File Number(s):

CA 2013/319409

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2010-11-12 00:00:00

Before:

Levy DCJ

File Number(s):

DC 2009/338335

Judgment

1. BASTEN JA: This matter involved a trial in the District Court in proceedings brought by Ms Hayam Abed against the State of New South Wales and Mr and Mrs Younis for tortious misconduct alleged to be, with respect to Mr and Mrs Younis, obtaining police to come to premises and arrest and falsely imprison Ms Abed. The claim against the State was based on its vicarious liability for the actions of the police.

1. Prior to the trial, an order was sought against Mr and Mrs Younis that they pay into court an amount of money being the proceeds of the sale of a property which they had owned. The amount paid into court was $437,154.54. Prior to the final judgment, orders were made to pay out of the sum held in court an amount totalling $126,072. At the end of the trial the plaintiff obtained a judgment in a total amount of $215,000.89.

1. There is an appeal in respect of that judgment. There is also a cross-appeal by the plaintiff alleging that the damages awarded were inadequate, although nothing has been said to explain the basis of that cross-appeal.

1. Mr and Mrs Younis apply for the release of a proportion of the moneys still held in the District Court. The amount sought, initially at least, was a figure of $96,382. Moneys have been held in the District Court for the purpose of ensuring that if the plaintiff obtained a judgment against the defendants at her trial she would be able to recover an appropriate amount from the assets of Mr and Mrs Younis (as well as from the State).

1. Assuming that Mr and Mrs Younis and the State are jointly and severally liable for the full amount, the plaintiff is entitled to payment from the moneys held in Court of $215,000. The remainder of the money is not presently held against any order or judgment debt. Once the amounts already paid out have been subtracted, there is a balance a little over $311,000 being held in court. There may be some expenses which are incurred by the District Court in holding the moneys and some allowance should be made on that account.

1. Payment out of court of the full amount sought by Mr and Mrs Younis would not be appropriate. However, if there is power to do so, the Court should now order payment of the amount of $90,000. Those are funds of Mr and Mrs Younis, on which no one else presently has a claim; there is no claim for security in an amount in excess of $215,000. (The plaintiff has not sought payment out pursuant to the judgment, pending determination of the appeal.)

1. An issue has been raised by counsel for the State as to whether this Court has jurisdiction to make any order with respect to moneys presently held in the District Court. It is true that the moneys are not held in this Court; they are held by order of a District Court judge in respect of which no appeal has been lodged. However, the purpose for which the moneys were paid into the District Court was to secure payment of the judgment of that Court which is currently the subject of proceedings by way of appeal and cross-appeal in this Court.

1. If there is to be any payment out of those moneys it will be as a result of the disposal of the matters presently before this Court. If the appeal is dismissed this Court could order release of part or all the judgment debt to the respondent. In circumstances where there is no call on those moneys other than for the judgment debt the subject of the pending appeal, plus whatever fees may be due to the District Court, I do not see why this Court does not have jurisdiction to require payment out by the District Court Registrar to the people who are entitled to the moneys: Supreme Court Act 1970 (NSW), s 23.

1. Accordingly, I propose to make an order in terms of the orders sought in the notice of motion filed on behalf of Mr and Mrs Younis, in the following terms.

1. Order that the Registrar of the District Court take such steps as are necessary to pay the sum of $90,000, being part of the sum of $437,454 paid into court as a result of the orders made by Levy DCJ on 12 November 2010, into the S Stojanovic Trust Account with the Commonwealth Bank, Liverpool.

2. Order that the appellant and first respondent pay the costs of the second and third respondents, Mr and Mrs Younis, of the motion, such costs to be payable upon the determination of the proceedings in this Court.

3. Otherwise dismiss the notice of motion filed 26 February 2014.

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Decision last updated: 14 March 2014