Barel v Barel [2023] NSWDC 135

District Court New South Wales

Medium Neutral Citation: Barel v Barel [2023] NSWDC 135 Hearing dates: 14 April 2023 Date of orders: 3 May 2023 Decision date: 03 May 2023 Jurisdiction: Civil Before: Russell SC DCJ Decision: (1) Appoint the first defendant to represent the estate of the late Raphael Barel, the second defendant, in these proceedings. (2) Set aside the default judgment entered on 9 January 2023 against both defendants. (3) Grant leave to the first defendant to file within 14 days a Defence on behalf of both defendants, in accordance with annexure "A" to Exhibit DX 1. (4) Order pursuant to s 16 of the Civil Procedure Act 2005 (NSW) that the plaintiff pay the sum of $173,727.29, paid to him on 18 January 2023 by force of a garnishee order, together with any interest earned thereon, to the Registrar of the District Court to abide the outcome of these proceedings and to be dealt with in accordance with Part 41 of the Uniform Civil Procedure Rules 2005 (NSW). (5) Order each party to pay their own costs of the Notice of Motion filed on 16 February 2023. Catchwords: CIVIL PROCEDURE – parties – representative order – appointment, powers and duties of representative – interests of deceased person – appointment of representative of deceased person's estate for purpose of proceedings CIVIL PROCEDURE – pleadings – leave granted to file defence – where default judgment set aside CIVIL PROCEDURE – service – substituted service – person under legal incapacity – not disclosed in application COSTS – costs orders where defendant seeks to set aside default judgment – each party to pay own costs JUDGMENTS AND ORDERS – default judgment – setting aside – irregularity entered – where default judgment obtained after defendant died – no legal entity to represent defendant – whether liability of other defendant affected – joint and several liability JUDGMENTS AND ORDERS – default judgment – setting aside – whether bona fide defence on merits – whether explanation for failure to defend – length of delay – whether plaintiff will suffer prejudice – where defendant unaware of proceedings until after default judgment entered – whether garnishee order was irregular and should be set aside – whether there should be restitution of monies obtained by force of garnishee order Legislation Cited: Civil Procedure Act 2005 (NSW) ss 16, 117, 123, 124A Law Reform (Miscellaneous Provisions) Act 1944 (NSW), s 2 Local Court Act 2007 (NSW), s 30 Uniform Civil Procedure Rules 2005 (NSW), rr 6.30, 7.10, 7.13, 7.17, 10.12, 36.15, 36.16, Part 41 Category: Procedural rulings Parties: Elie Barel (Plaintiff) Linda Barel (First Defendant) Raphael Barel (Second Defendant) Representation: Counsel: B Smith (Plaintiff) S McCarthy (First Defendant)