Barel v Barel [2024] NSWDC 330

District Court New South Wales

Medium Neutral Citation: Barel v Barel [2024] NSWDC 330 Hearing dates: 08 August 2024 Date of orders: 09 August 2024 Decision date: 09 August 2024 Jurisdiction: Civil Before: Fitzsimmons SC DCJ Decision: (1) The defendants' notice of motion filed 28 June 2024 is dismissed. (2) The defendants are to pay the plaintiff's costs of the motion. Catchwords: CIVIL PROCEDURE – application to set aside or vary an order – UCPR r 36.16 - restitution of funds paid under a garnishee order – discretionary considerations Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 124A Uniform Civil Procedure Rules 2005 (NSW), rr 36.16(1), 36.16(3A), 41.3 Cases Cited: Barel v Barel [2023] NSWDC 135 Majak v Rose (No 5) [2017] NSWCA 238 Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13 State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283 Category: Procedural rulings Parties: Elie Barel (Plaintiff) Linda Barel (First Defendant) Raphael Barel (Second Defendant) Representation: Counsel: B Smith (Plaintiff) S A Scott (First and Second Defendants)

Solicitors: ESY Lawyers (Plaintiff) Diamond Conway Lawyers (First and Second Defendants) File Number(s): 2022/00231245 Publication restriction: NIL

Judgment

Introduction 1. On 21 June 2024, the Court made an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') r 41.3 that the sum of $80,000 be paid to the first defendant from funds paid into Court in accordance with the previous orders of Russell SC DCJ on 3 May 2023. 2. By notice of motion filed 28 June 2024, the defendants seek an order varying the previous order, the effect of which is to release to the defendants the balance of the funds paid into Court plus interest pursuant to UCPR r 36.16(1) and r 36.16(3A). The application is opposed. 3. The proceedings have an extraordinary and unfortunate procedural history. The costs incurred to date are likely to be significant in circumstances where the amount in issue is approximately $150,000. The conduct of the litigation to date does not reflect well on either party. The proceedings are listed for hearing in a matter of weeks (4 September 2024) with an estimate of three days. Directions have been made for the filing and serving of affidavit evidence prior to the substantive hearing. 4. In support of the application, the defendants read the affidavit of Michael Mazzone sworn 28 June 2024. The plaintiff read the affidavit of Eliasson Sayed Yamine sworn 26 July 2024 on the question of costs.