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

Supreme Court New South Wales

Medium Neutral Citation: Re Iris McLaren (No 2) [2019] NSWSC 1894 Hearing dates: 1 November, 11 December, 18 December 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Equity - Probate List Before: Parker J Decision: Judgment in favour of the Defendant for restitution in the sum of $121,000 (plus interest awarded from 1 December 2016). Defendant's application for stay of execution of judgment refused. Catchwords: RESTITUTION – recovery of money paid under a judgment or order which has been set aside – where defendant ordered to pay the plaintiff's costs of the proceedings at first instance in 2015 – where defendant paid those costs following assessment – where High Court allowed defendant's appeal in 2018 and set aside the costs order at first instance – where defendant did not seek an order for repayment of his costs in the Court of Appeal or High Court – whether Court has power to award restitution in circumstances where there is non-compliance with Uniform Civil Procedure Rules 2005 (NSW), r 51.19 – restitution awarded notwithstanding non-compliance with rules of court

RESTITUTION – recovery of money paid under a judgment or order which has been set aside – interest to be awarded on recovered sum – whether interest on recovered sum to be awarded from date of payment or the date of first making the application for restitution – interest awarded from date of payment pursuant to Civil Procedure Act 2005 (NSW) s 100

PRACTICE AND PROCEDURE – stay of execution – whether to grant stay of an order for restitution pending an appeal – appeal not presently foreshadowed – stay refused Legislation Cited: Civil Procedure Act 2005 (NSW), ss 90, 100, 101 High Court Rules 2004 (Cth), r 42.02 Supreme Court Act 1970 (NSW), s 95 Supreme Court Rules 1970 (NSW), Part 40 r 3, Pt 51AA r 18 Uniform Civil Procedure Rules 2005 (NSW), r 51.19 Cases Cited: Bennett v Jones [1971] 2 NSWLR 355 Cai v Zheng (No 2) [2009] NSWCA 317 Commonwealth v McCormack (1984) 155 CLR 273 Government Insurance Office of NSW v Healey (No 2) (1991) 22 NSWLR 380 Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600 Lee v Mallam (1910) 10 SR (NSW) 876 McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190 Nobarani v Mariconte (No 2) [2017] NSWCA 124 Nobarani v Mariconte [2018] HCA 237; 92 ALJR 806 Nobarani v Mariconte (No 2) [2018] HCA 49; 92 ALJR 1031 Optus Administration Pty Ltd v Wright (No 2) [2017] NSWCA 154 Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 Re the Estate of Iris Mclaren; Mariconte v Nobarani [2015] NSWSC 667 Rodger v Comptoir d'Escompte de Paris (1871) LR 3 PC 465 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 Tjiong v Tjiong (No 2) [2018] NSWSC 1981 Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 Texts Cited: Mason & Carter's Restitution Law in Australia (3rd ed, LexisNexis Butterworths, 2016) Category: Procedural and other rulings Parties: Teresa Ann Mariconte (Plaintiff/Cross-Defendant) Homayoun Nobarani (Defendant/Cross-Claimant) Representation: Counsel: AG Martin (Plaintiff/Cross-Defendant) M Hall (Defendant/Cross-Claimant)