Larkin v Merhi [2016] NSWLC 11

Larkin v Merhi [2016] NSWLC 11

Because the default judgment had been set aside, the Local Court had power under s 30 of the Local Court Act 2007 to order repayment of the garnisheed moneys as a common law money claim. Justice required payment to Merhi forthwith, not to his solicitor or into Court, because there was evidence of a complete defence on the merits and no evidence supporting Larkin's claim. The new repayment order replaced the Registrar's order, Merhi had taken a further step by seeking the payment order, and the repayment order provided an enforceable remedy, so there was no legal basis to impose a contempt sanction.

Jurisdiction
Australia
Judgment Date
20 May 2016
Procedural Posture
Civil Proceedings; Application for Restitution and Punishment of Contempt Following Default Judgment and Garnishee Order / Review of Registrar's Order; Motion for Contempt; Orders After Default Judgment Set Aside
Outcome
The plaintiff was ordered to pay the garnisheed moneys to the defendant; the motion for contempt was dismissed; the plaintiff was ordered to pay the defendant's costs; the substantive proceedings were stayed until satisfaction of the repayment, interest and costs orders.
Legal Topics
['garnishee Order' 'default Judgment Set Aside' 'restitution of Moneys Paid Under Judgment' 'local Court Jurisdiction' 'civil Contempt' 'costs']
['civil Procedure' 'restitution' 'contempt of Court'] ['garnishee Order' 'default Judgment Set Aside' 'restitution of Moneys Paid Under Judgment' 'local Court Jurisdiction' 'civil Contempt' 'costs']

Case Brief

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Procedural Posture

Civil Proceedings; Application for Restitution and Punishment of Contempt Following Default Judgment and Garnishee Order / Review of Registrar's Order; Motion for Contempt; Orders After Default Judgment Set Aside

Legal Issues

  1. 1 ['Whether the Local Court had power to order repayment of moneys paid under a garnishee order after the default judgment was set aside.' "Whether repayment should be ordered to the defendant, into the defendant's solicitor's trust account, or into Court." "Whether Larkin should be found in civil contempt and punished for failing to comply with the Registrar's order to pay the garnisheed money into Court." 'What costs orders should be made.']

Ratio Decidendi

Because the default judgment had been set aside, the Local Court had power under s 30 of the Local Court Act 2007 to order repayment of the garnisheed moneys as a common law money claim. Justice required payment to Merhi forthwith, not to his solicitor or into Court, because there was evidence of a complete defence on the merits and no evidence supporting Larkin's claim. The new repayment order replaced the Registrar's order, Merhi had taken a further step by seeking the payment order, and the repayment order provided an enforceable remedy, so there was no legal basis to impose a contempt sanction.

Court Disposition

The plaintiff was ordered to pay the garnisheed moneys to the defendant; the motion for contempt was dismissed; the plaintiff was ordered to pay the defendant's costs; the substantive proceedings were stayed until satisfaction of the repayment, interest and costs orders.

Orders

  • ['The plaintiff to pay $59,234 to the defendant.' 'Interest to accrue on $59,234 from 7 December 2015 pursuant to s 101 of the Civil Procedure Act 2005.' "The plaintiff to pay the defendant's costs of and incidental to the motion to set aside default judgment before the registrar and the motion for review and...