Re Iris McLaren (No 2) [2019] NSWSC 1894

Re Iris McLaren (No 2) [2019] NSWSC 1894

The Supreme Court had power at first instance to award restitution because the right to recover money paid under a judgment later set aside exists independently of UCPR r 51.19 and is enforceable as a common law restitutionary claim. Mr Nobarani was entitled to repayment and interest from 1 December 2016 because the cause of action accrued when the garnishee payment was made and no prejudice justified postponing interest. A stay was refused because no appeal was presently foreshadowed and retaining the money pending a possible future costs entitlement was not a legitimate basis for staying restitution.

Jurisdiction
Australia
Judgment Date
18 December 2019
Procedural Posture
Equity Probate List; Cross Claim for Restitution and Related Interlocutory Applications / Judgment on Third Cross Claim and Motion After High Court Remitter
Outcome
Judgment entered for Homayoun Nobarani on the third cross-claim in the sum of $141,471.21; stay of enforcement refused; remaining cross-claim and the motion otherwise dismissed; costs ordered in part.
Legal Topics
['recovery of Money Paid Under a Judgment or Order Later Set Aside' 'interest on Restitutionary Recovery' 'uniform Civil Procedure Rules 2005 (nsw), R 51.19' 'stay of Execution Pending Possible Further Proceedings' 'administrator Pendente Lite']
['restitution' 'practice and Procedure' 'probate'] ['recovery of Money Paid Under a Judgment or Order Later Set Aside' 'interest on Restitutionary Recovery' 'uniform Civil Procedure Rules 2005 (nsw), R 51.19' 'stay of Execution Pending Possible Further Proceedings' 'administrator Pendente Lite']

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Procedural Posture

Equity Probate List; Cross Claim for Restitution and Related Interlocutory Applications / Judgment on Third Cross Claim and Motion After High Court Remitter

Legal Issues

  1. 1 ['Whether the Supreme Court at first instance had power to order restitution of costs paid under an order later set aside despite non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 51.19.' 'Whether interest on the recovered sum should run from the date of payment or only from the date restitution was first claimed.' 'Whether execution of the restitution judgment should be stayed pending the principal probate proceedings.' 'What costs order should be made on the cross-claim and motion.']

Ratio Decidendi

The Supreme Court had power at first instance to award restitution because the right to recover money paid under a judgment later set aside exists independently of UCPR r 51.19 and is enforceable as a common law restitutionary claim. Mr Nobarani was entitled to repayment and interest from 1 December 2016 because the cause of action accrued when the garnishee payment was made and no prejudice justified postponing interest. A stay was refused because no appeal was presently foreshadowed and retaining the money pending a possible future costs entitlement was not a legitimate basis for staying restitution.

Court Disposition

Judgment entered for Homayoun Nobarani on the third cross-claim in the sum of $141,471.21; stay of enforcement refused; remaining cross-claim and the motion otherwise dismissed; costs ordered in part.

Orders

  • ['On the third cross-claim I order judgment in favour of the cross-claimant against the cross-defendant in the sum of $141,471.21.' 'I decline to make an order staying enforcement of the judgment.' "I order the cross-claim be otherwise dismissed and the plaintiff's motion filed 23 July 2019 be otherwise dismissed."...