State of New South Wales v Younis (No 2)

[2014] NSWCA 291

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Younis (No 2) [2014] NSWCA 291

Hearing dates:

25 August 2014

Decision date:

25 August 2014

Before:

Leeming JA

Decision:

1. The Registrar of the District Court of New South Wales take such steps as are necessary to pay the sum of $49,000 being part of the sum of $437,154.54 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. Otherwise dismiss the Notice of Motion filed 13 August 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 - payment out of monies paid into Court

Cases Cited:

New South Wales v Younis [2014] NSWCA 56

Category:

Interlocutory applications

Parties:

State of New South Wales (Appellant / 1st Respondent on motion)
Hayam Abed (1st Respondent / 2nd Respondent on the motion)
Wafaa Younis (2nd Respondent / 1st Applicant on the motion)
Khalil Younis (3rd Respondent / 2nd Applicant on the motion)

Representation:

Counsel:
Mr R Watson (1st Respondent / 2nd Respondent on the motion)
Mr S Stojanovic (2nd and 3rd Respondents / 1st and 2nd Applicants on the motion)
Solicitors:
Crown Solicitor's Office (Appellant / 1st Respondent on motion)
Kheir & Associates (1st Respondent / 2nd Respondent on the motion)
Stojanovic Solicitors (2nd and 3rd Respondents / 1st and 2nd Applicants on the motion)

File Number(s):

2013/319409

 Decision under appeal 

Date of Decision:

2010-11-12 00:00:00

Before:

Sorby DCJ

File Number(s):

DC 2009/338335

Judgment

1. LEEMING JA: This is an application by motion filed 13 August 2014 for the payment of the sum of $49,000 out of Court. The background to the proceedings at first instance, and in this Court, is described in the reasons of Basten JA in State of New South Wales v Younis [2014] NSWCA 56, where his Honour moreover concludes that there is power to make the orders sought.

1. On that occasion his Honour made a direction in respect of the sum of $90,000 which had been paid into Court pursuant to orders made by the District Court of New South Wales.

1. This motion comes now before me in circumstances where the appeal is listed for hearing, with an estimate for two days, on 10 September 2014, that is to say, a little more than two weeks' time.

1. There is uncontested evidence that the estimate of fees to be paid for the preparation and hearing of that appeal will exceed the sum of the balance presently held in Mr Stojanovic's trust account and the $49,000 the subject of this application. In short, the amount sought will still leave a shortfall compared to the amount estimated to be spent in the preparation and hearing of the appeal. The amount of $49,000 has been calculated by reference to the fact that there will still remain a balance of slightly more than $215,000 held by the District Court, that being the judgment sum the subject of the appeal. Further, there is uncontested evidence that if the further sum is not released, Mr Stojanovic would be unable to retain counsel for the hearing of the appeal, which would seriously prejudice and disadvantage the second and third respondents.

1. Accordingly I am satisfied that this is an appropriate case for the making of the orders sought. I order that:

1. The Registrar of the District Court of New South Wales take such steps as are necessary to pay the sum of $49,000 being part of the sum of $437,154.54 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. Otherwise dismiss the notice of motion filed 13 August 2014.

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Decision last updated: 27 August 2014