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) Solicitors: N Harvey (pro bono, Law Society of New South Wales) McDonnell Schroder (Defendant/Cross-Claimant) File Number(s): 2014/8282 Publication restriction: Nil Judgment (issued 27 december 2019) 1. On 18 December 2019 I made orders in these proceedings disposing of a motion, and one of the cross-claims, in the proceedings. This judgment sets out my reasons for those orders. 2. The principal proceedings concern the validity of a will made by the late Iris McLaren shortly before she died in December 2013. In May 2015, this Court (Slattery J) upheld the will, but the decision was later overturned by the High Court on the ground that there had been a denial of procedural fairness. The High Court remitted the proceedings to this Court for a new trial. 3. The plaintiff, Teresa Anne Mariconte, is the sole beneficiary under Ms McLaren's 2013 will. The first defendant, Homayoun Nobarani, was a beneficiary under an earlier will of Ms McLaren which was revoked by the 2013 will. Under the earlier will, Mr Nobarani was entitled to a one-sixth share of the deceased's personal effects and jewellery. Issues for determination 1. The date for the new trial as to the validity of the 2013 will has not yet been set. The proceedings came before me on two applications by Mr Nobarani which were made by way of Notice of Motion filed in July 2019. 2. Mr Nobarani's first application was for an order for repayment of the costs which he was ordered to pay under the Court's judgment of May 2015. Those costs were assessed and payment was enforced in the sum of $121,259.14 by means of a garnishee notice in December 2016. The costs order was later set aside by the High Court as a result of the successful appeal. 3. The second application was for Mr Nobarani to be appointed administrator of Ms McLaren's estate pendente lite, until the proceedings have been determined. In its May 2015 judgment, the Court granted probate to Ms Mariconte in solemn form of the 2013 will. That order also was set aside as a result of the successful appeal to the High Court. But while the grant was in force Ms Mariconte took possession of the assets of the estate and it appears that they have largely been dissipated by her. 4. The Notice of Motion was entered in the Applications List and came before me for hearing on 1 November. But a procedural problem arose. 5. As we will see, the claim by Mr Nobarani to recover the costs paid under the garnishee order is a substantive one. Ordinarily such a claim would be pleaded and would proceed to final hearing in the ordinary way. But the Court has power under the Civil Procedure Act 2005 (NSW) ("CPA"), s 90(1), to give judgment either after trial or "otherwise as the nature of the case requires". In effect, Mr Nobarani's application sought to have the Court determine his claim for restitution summarily under s 90(1). 6. A court should only exercise its power to enter judgment under CPA s 90(1) in a summary way if that course is procedurally fair to the party against whom judgment is sought. Had both parties been prepared to dispense with formal pleadings and treat the motion hearing as a final hearing of the claim, there would have been no problem. But at the hearing on 1 November, counsel for Ms Mariconte sought an adjournment. Counsel indicated that there might be a substantive defence, or a cross-claim against Ms Mariconte's former solicitors (who were responsible for the steps taken to garnishee the costs from Mr Nobarani), or both. 7. In these circumstances it was not possible to deal with Mr Nobarani's claim in a summary way, and there was no alternative but to adjourn the proceedings. In order to put the claim on a more formal procedural course, I made directions for Mr Nobarani to file a cross-claim seeking restitution, and for the filing of any defence or cross-claim by way of response by Ms Mariconte. The hearing was fixed for 11 December. 8. Pursuant to these directions, a cross-claim was filed for Mr Nobarani. The cross-claim pleaded the payment of the costs under the Court's May 2015 orders, and the fact that the costs order had been set aside by the High Court. It claimed the entry of judgment for the amount wrongly paid, together with interest from the date of payment. 9. In response, a defence was filed for Ms Mariconte. No cross-claim was filed against Ms Mariconte's former solicitors. 10. Ms Mariconte's defence did not dispute her liability to repay the $121,000 garnisheed from Mr Nobarani. The defence also accepted that Mr Nobarani was entitled to interest, but sought to limit the interest to the period after the Notice of Motion was filed. The defence also foreshadowed that if the Court entered judgment in favour of Mr Nobarani, Ms Mariconte would apply for a stay of execution until the principal proceedings have been decided. 11. Mr Nobarani's cross-claim also pleaded his application for appointment as administrator pendente lite of Ms McLaren's estate. The relevant order was sought in the prayers for relief in the cross-claim. I had not contemplated that this would be done and I am not sure that it was appropriate, but the parties had anyway agreed that the hearing on 11 December would be confined to Mr Nobarani's claim for restitution. 12. At the hearing on 11 December, counsel for Ms Mariconte took a belated point in answer to the claim for restitution. Counsel argued that the Court had no power to entertain the claim. This point should have been raised by way of opposition to the directions which I made for the filing of Mr Nobarani's cross-claim, or by way of a strike-out application. Nevertheless I entertained the point as it seemed to me to involve purely questions of law. The other points argued were Mr Nobarani's entitlement to interest and Ms Mariconte's application for a stay. Both Mr Nobarani and Ms Mariconte gave evidence by affidavit. Ms Mariconte was cross-examined. Counsel also made submissions on costs. 13. It became apparent in the course of the hearing on 11 December that, depending on my decision on the points argued, other interlocutory issues might arise. The possibility was raised of Mr Nobarani proceeding to orders to enforce sale of Ms Mariconte's house if a stay was refused. On the other hand, counsel for Ms Mariconte foreshadowed the possibility of Mareva-style relief to prevent Mr Nobarani dissipating any funds he might receive. The application to have Mr Nobarani appointed as administrator pendente lite also remained pending. I therefore reserved my decision on the points argued and adjourned the proceedings to 18 December with a view to giving my decision on that date and then dealing with any consequential or further applications. 14. On 18 December I announced my decision to enter judgment in favour of Mr Nobarani for restitution of the $121,000 together with interest from the date of payment, and to decline a stay of execution. But counsel for Mr Nobarani then declined to seek any order for the sale of Ms Mariconte's house. For his part, counsel for Ms Mariconte did not seek any Mareva-style relief. 15. This left the application for appointment of Mr Nobarani as administrator. Initially counsel for Mr Nobarani sought to hold this over for further hearing, but I made it clear that I thought this unsatisfactory. Ultimately the application was not pressed and I ordered that it be dismissed. Counsel for Ms Mariconte consented to the dismissal being without prejudice to any future application, in the sense that it will not prevent such an application being made, but counsel made it clear that the consent that will not prevent the failure to pursue the application before me from being relied upon as a discretionary answer to a later application, if one is made. 16. I now set out the reasons for my decision on the three points taken in answer to Mr Nobarani's restitution claim, and on costs. Facts and evidence 1. In January 2014, Mr Nobarani (who was representing himself) filed a caveat against the grant of probate in the estate of Ms McLaren without notice to him. Shortly afterwards, on 5 February, another caveat against the grant of probate was filed by the Animal Welfare League NSW, another beneficiary of the earlier will displaced by the will made in 2013. 2. These proceedings were begun by Ms Mariconte as plaintiff on 11 February 2014. By her Summons, Ms Mariconte sought an order granting probate of the 2013 will. Three days later, on 14 February, Ms Mariconte made an application by way of notice of motion for orders that the caveats filed by Mr Nobarani and the Animal Welfare League cease to have effect. 3. Initially Ms Mariconte's Summons did not name any defendant. In May 2014 the Summons was amended to name the Animal Welfare League as the defendant. The claim for probate thereafter proceeded as a contested one between Ms Mariconte and the Animal Welfare League, which filed a defence and cross-claim. 4. Ms Mariconte's legal advisers did not join Mr Nobarani as a defendant at that point. Instead they proceeded against him on the caveat motion. It seems that they considered that he had no sufficient interest to oppose the grant of probate. 5. In November 2014, the proceedings were fixed for trial on 20 and 21 May 2015. Subsequently Ms Mariconte and the Animal Welfare League reached a compromise which resulted in the Animal Welfare League withdrawing its defence and cross claim. The proceedings on the caveat motion continued against Mr Nobarani (who was still representing himself). 6. Then, at a directions hearing on 14 May 2015, less than a week before the trial was to begin, there was a change of position by Ms Mariconte. Her legal representatives persuaded Slattery J to convert the hearing from a motion to get rid of Mr Nobarani's caveat into a full-scale contested claim for probate. Mr Nobarani was directed to file a defence and any further evidence by 18 May. Ms Mariconte's claim was subsequently amended so as to name Mr Nobarani as second defendant. 7. At the hearing before Slattery J, Mr Nobarani's case was in disarray, although it seems that this was not solely because of the change in direction by Ms Mariconte's legal advisers. His Honour heard evidence from witnesses to the execution of the 2013 will called on Ms Mariconte's behalf and on 22 May delivered a judgment in her favour. His Honour granted probate in solemn form of the 2013 will to Ms Mariconte. He also ordered that Mr Nobarani pay Ms Mariconte's costs of the proceedings (see Re the Estate of Iris Mclaren; Mariconte v Nobarani [2015] NSWSC 667). 8. Mr Nobarani filed an appeal against Slattery J's judgment. The appeal proceedings languished. In the meantime, Ms Mariconte's legal advisers had the costs the subject of the Court's order assessed. In late September 2016 judgment was obtained in the sum of $120,190.24 by filing the assessor's certificate of determination. 9. On 30 November 2016, Ms Mariconte's solicitors obtained a garnishee order for the costs debt, in the sum of $120,190.24 together with interest of $1,068.90. The order was addressed to Gerard Malouf & Partners, who had acted for Mr Nobarani in a personal injury claim and were holding the proceeds of that claim on his behalf. The order was served the following day, 1 December. It appears to have been complied with on that day, Gerard Malouf & Partners making payment of the sum of $121,259.14 to Ms Mariconte's solicitors in satisfaction of the order. 10. Mr Nobarani's appeal against the May 2015 orders eventually came on for hearing before the Court of Appeal in April 2017. By the time the hearing took place, Mr Nobarani was represented by counsel. Judgment was delivered in June (Nobarani v Mariconte (No 2) [2017] NSWCA 124). 11. All of the appeal judges were troubled by the procedure which had been adopted in this Court at the urging of Ms Mariconte's legal representatives. Simpson AJA would have upheld the appeal. But Ward JA considered that having regard to the strength of Ms Mariconte's case, overall there had been no substantial miscarriage of justice. Emmett AJA considered that Mr Nobarani did not have a sufficient legal interest to challenge the 2013 will. By majority, therefore, the appeal was dismissed with costs. 12. Special leave to appeal was granted by the High Court which delivered its decision in August 2018: Nobarani v Mariconte [2018] HCA 237; 92 ALJR 806. Mr Nobarani's appeal was allowed. The High Court rejected the view that Mr Nobarani lacked standing to oppose the claim for probate of the 2013 will. The Court also considered that Mr Nobarani there had been a miscarriage of justice. 13. The High Court set aside the orders made by Slattery J (which included the costs orders in favour of Ms Mariconte) and ordered instead that Ms Mariconte pay Mr Nobarani's "costs of the trial". The High Court also ordered that Ms Mariconte pay Mr Nobarani's costs of the appeal to the Court of Appeal and the appeal to the High Court. It appears that no steps have yet been taken to have the costs awarded in Nobarani's favour assessed or taxed. 14. According to Ms Mariconte's affidavit in response to Mr Nobarani's claim for restitution, she is in a dire financial position. She said that the only asset she has is a unit at Caringbah (bought with monies from the estate), where she lives by herself with three rescue dogs. She said she has no money in the bank, no family or friends who could give or lend her money, and no ability to borrow on the unit. She said that if forced out of the unit, she would have nowhere to live. She gave a lengthy list of health problems from which she suffers. 15. In reply, Mr Nobarani had a sad story of his own to tell. He said that he suffered serious injuries in a car accident in January 2007, and since then has been a disability pensioner. His personal injury claim (which I assume arose out of the car accident) was settled for $200,000 but, according to Mr Nobarani, after repayments to Medicare, payment of costs, and the execution of the garnishee order, there was nothing left. Mr Nobarani says he has no savings and no significant assets. He says he is unable to pay for surgery or physiotherapy to treat the medical conditions which resulted from his injuries and cannot even afford all of the analgesic medications which he requires. He said that his legal representatives are acting for him on a "no win no fee" basis but he is required to pay for court fees and other disbursements. He says he has no means of doing so. 16. The cross-examination of Ms Mariconte emphasised how open-handed she was with the assets of the estate (which originally totalled approximately $1.89 million) in the period of time between the grant of probate in May 2015 and the setting aside of the grant by the High Court in August 2018. The whole of the proceeds of the estate appear to have been spent. Apart from the purchase of the Caringbah unit, Ms Mariconte appears to have given the rest of the estate away to family and friends. In particular, she said that she had given $250,000 to a friend, Mr Mansour, who was being prosecuted of drugs charges, for the purpose of his defence. Ms Mariconte was not asked about what had happened to Mr Nobarani's monies paid under the garnishee order; they may well have been retained by her solicitors on account of legal fees for the proceedings. 17. As the High Court said in a supplementary judgment (Nobarani v Mariconte (No 2) [2018] HCA 49; 92 ALJR 1031), Ms Mariconte was entitled to deal with the estate once probate had been granted in May 2015, but did so at her own risk. The same comment applies to dealings with the monies obtained under the garnishee order. While the evidence suggests that Ms Mariconte has been profligate to the point of recklessness, the fact is that the monies appear to have been spent. Ms Mariconte's evidence that she was unable to obtain any financial support from family and friends (including those who have benefited from the estate such as Mr Mansour) was not challenged in cross-examination. Power of Supreme Court at first instance to order restitution 1. Counsel's argument that the Court had no power to enter judgment in Mr Nobarani's favour was based on the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 51.19. That rule provides: How claims for reinstatement or restitution to be made in appeal or cross-appeal An appellant or cross-appellant who seeks an order for reinstatement or restitution must include in the notice of appeal or notice of cross-appeal— (a) a claim for the order and the form of the order, and (b) where restitution is sought—any claim for interest that is at a rate other than the relevant rate set out in rule 36.7(1). 1. Counsel pointed out that Mr Nobarani did not comply with this rule in his appeal to the Court of Appeal. Counsel argued that any claim for restitution could only be made in compliance with the rule. According to counsel, this meant that the Court, at first instance, had no power to grant judgment. 2. This is a rather technical argument. Strictly speaking, counsel appears to be correct in submitting that there was a breach of UCPR 51.19. When the appeal proceedings were begun, the costs had not been assessed and payment had not been made. But once the garnishee notice had been satisfied, r 51.19 required that Mr Nobarani's notice of appeal be amended to claim restitution. 3. It is however, common, where payment is made after the notice of appeal has been filed, for the Court of Appeal to be informed of this by way of written submissions, or orally in the course of the hearing. There was no evidence in the present case about whether Mr Nobarani's counsel informally drew the Court of Appeal's attention to the payment or not. And in the end the Court of Appeal dismissed Mr Nobarani's appeal. The failure to advise the Court of Appeal of his claim for restitution (if there was such a failure) made no difference at all to the outcome in the Court of Appeal. 4. The real complaint behind counsel's submission is that restitution was not sought from the High Court when the further appeal was taken there from the Court of Appeal. The garnishee payment was made well before the High Court proceedings were instituted, so there was no excuse for not doing so. But this has nothing to do with UCPR r 51.19. 5. In the course of argument, I asked counsel for Ms Mariconte whether there was a High Court equivalent of UCPR r 51.19. Counsel relied on the High Court Rules 2004 (Cth), r 42.02.2 (f). That rule provides: A notice of appeal shall: … (f) specify the precise form of order which the appellant contends the Court should make including any special order as to costs. 1. This rule is plainly not in any way comparable with UCPR r 51.19. It does not even refer to claims for restitution. I therefore have some doubt as to whether counsel's argument truly arises in the present case. Nevertheless I propose to deal with it on its merits. 2. It is long been recognised that, where an appellate Court sets aside a judgment or order made by a lower court and money has been paid under that judgment or order, the appellate court has power to order restitution of the amount so paid. In Rodger v Comptoir d'Escompte de Paris (1871) LR 3 PC 465, an appeal to the Privy Council from the Supreme Court of Hong Kong, judgment had been given against the appellant in the Supreme Court and the appellant had satisfied the judgment. The appeal was allowed and the judgment of the Supreme Court set aside by the Privy Council. The order made by the Privy Council in terms only reversed the judgment of the Supreme Court and directed that a non-suit be entered, but under regulations which governed appeals from Hong Kong to the Privy Council, the Supreme Court was obliged to "conform to, execute and carry into immediate effect" such judgments and orders as might be made by the Privy Council on appeal. On remittal of the proceedings to Hong Kong the Supreme Court ordered restitution of the amounts paid under the judgment which had been set aside, but declined to award interest. 3. The appellant took the case back to the Privy Council, which directed the Supreme Court to award interest. In its second judgment, the Privy Council (in an opinion delivered by Lord Cairns LC) said (at 475): Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression "the act of the Court" is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court. 1. It is clear that where a judgment which has been satisfied is later set aside, the right of restitution does not depend upon the existence of a rule of court such as UCPR r 51.19. There is an inherent power to make orders for restitution (really it may be better described as an obligation, since restitution is not discretionary). Although there is apparently no express rule of court which applies in the High Court, that Court has held it has power to grant restitution: Commonwealth v McCormack (1984) 155 CLR 273 at 277. While UCPR r 51.19 binds the parties and the Court of Appeal, the Court of Appeal would have power to award restitution even if the rule did not exist. 2. Indeed, the analysis in Rodger goes further, treating the power (or obligation) to grant restitution as a collective obligation of all of the courts through which the proceedings have passed. Obviously in the ordinary case this Court would defer to the Court of Appeal (or the High Court) to make an order for restitution. But on Lord Cairns' statement of the law, this Court, sitting at first instance, also has the power (or obligation) to award restitution so as to ensure that Mr Nobarani is made whole. 3. Of itself, this suggests that the argument by counsel for Ms Mariconte, based as it is on the language of r 51.19, is unsound. But I think that there is a further authority which demonstrates its unsoundness even more directly. 4. Lee v Mallam (1910) 10 SR (NSW) 876 arose out of proceedings in the District Court. The plaintiff in the District Court (Mallam) succeeded and obtained an order for costs against the defendant (Lee). Mallam's costs were taxed and the taxed amount was paid by Lee. Subsequently there was a review of the taxation which resulted in part of the costs being taxed off. Mallam refused to refund the excess amount. Lee thereupon commenced an action in the Supreme Court for monies had and received. At first instance, Pring J gave judgment for Lee in the amount claimed. 5. Mallam moved to set the verdict aside in the Full Court. Counsel for Mallam argued that Lee's only remedy was by way of application to the District Court, that being the Court in which the costs had been taxed and reviewed. Sly J, with whom Cohen & Gordon JJ concurred, accepted that Lee could probably have made an application to the District Court. His Honour continued (at 885, citation omitted): … but it by no means follows that that was his only remedy. An action for money received is applicable wherever the defendant has received money, which, in justice and equity, belongs to the plaintiff. Prima facie therefore the action is well founded, unless there is something in the District Courts Acts expressly or by clear intendment taking away such right. I cannot see anything in the District Courts Acts taking away such common law right. The present plaintiff did not bring the action in the District Court, but was brought there by the present defendant, and his argument is that the defendant now has money of his, and it is immaterial to him how the present defendant got it, whether in an action in the Supreme Court – District Court – any other Court. I think this argument is right. Assuming that the altered judgment is correct, then the defendant has money which in justice belongs to the plaintiff, and the plaintiff can sue for it in an action for money had and received. 1. Counsel for Ms Mariconte acknowledged the binding effect of this decision. He argued, however, that it only established that a claim could be brought in this Court for "monies had and received". He contended that Mr Nobarani's claim for restitution was something different. I cannot agree. The term "restitution" as used in this area is simply a new label which covers the old common law action for money had and received. Lee v Mallam is referred to in Mason & Carter's Restitution Law in Australia (3rd ed, LexisNexis Butterworths, 2016) at [706] where the right in question is expressly referred to as a "right of restitution". 2. One possible view of r 51.19 is that it simply provides a procedure for the Court of Appeal to entertain the common law action in a summary way. But it is not necessary to go into that question. Lee v Mallam clearly establishes that this Court, sitting at first instance, has power as part of its common law jurisdiction to award restitution of an amount paid under a judgment (whether of this Court or of any other court of this State) which has subsequently been set aside. There is nothing in UCPR 51.19 to take that power away. I reject counsel's argument. Interest 1. In these proceedings, there was no dispute that as a matter of principle interest was payable on the costs payment by Mr Nobarani (cf Rodger, where the Privy Council stopped short of this: LR 3 PC at 477). The only dispute was whether interest should run from the date on which the payment was made, or only from the date on which restitution was first claimed. 2. There has been some debate about the basis on which the courts award interest when ordering restitution of monies paid under a judgment which has been set aside. The leading case is Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600. 3. The leading judgment in Heydon was given by Mason P. One of the possible bases for the award of interest which his Honour considered was the statutory entitlement to interest on court judgments (now CPA s 101). In Government Insurance Office of NSW v Healey (No 2) (1991) 22 NSWLR 380 Kirby P, sitting as a single judge in the Court of Appeal, took advantage of a power the Court had under the then Pt 40, r 3(5) of the Supreme Court Rules to vary the date on which the judgment took effect for the purposes of post-judgment interest (under the then Supreme Court Act 1970 (NSW), s 95). Kirby P entered judgment for the amount paid under the judgment which had been set aside, and used this power to back-date the judgment to the date on which the payment was made. The effect was to award interest from the date of payment. 4. In Heydon Mason P criticised what Kirby P had done as a "very forced" solution (in McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd (1993) 32 NSWLR 190 at 192 Rogers CJ Comm D described a similar exercise of the power, back-dating a judgment so as to award interest, as "farcical": see Tjiong v Tjiong (No 2) [2018] NSWSC 1981 at [47]-[48] for the context). Mason P considered that the entitlement to interest does not depend upon statute or rules of court: it is part of the overall entitlement which a successful appellant has to restitutio in integrum (see 53 NSWLR at 603-607 [14]-[19]). 5. Subsequently in Cai v Zheng (No 2) [2009] NSWCA 317 Basten JA (with whom Giles JA and Hoeben J agreed) said (at [32]-[33]): [32] In Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600 at [32] Mason P (with whom Beazley JA and Ipp AJA agreed) stated that it was the practice of the Court "to award restitutionary interest at the rates payable on judgments unless special circumstances exist". That statement was made in considering how interest was to be calculated. It is open to the Court to deny an appellant interest in appropriate circumstances. There is always a danger in seeking to identify guiding principles, to which a court will usually adhere, by stating a practice subject to an exception arising in "special circumstances". Rather, the question is whether, in all the circumstances of a particular case, it is appropriate to award interest on an order for repayment of an amount of a judgment, paid in part as a condition of a stay. [33] In the present case, a significant consideration is the failure of the appellant to seek an order for repayment of the money or, if that were to be implied as sought in the usual course, an order for interest on the amount outstanding. Such an order, sought in the notice of appeal, might have placed the respondent on notice as to what might be required of her if the appeal were successful. Accepting that, properly advised, she should have been alert to the fact that repayment might be required, it is not so clear that she would have been advised that an order for repayment would necessarily attract a requirement to pay interest when none was claimed. The circumstances of the present case are satisfied by ordering that interest be paid on the amount outstanding from the date of the notice of motion seeking to amend the notice of appeal to include the claim for interest, namely 27 February 2009. 1. Counsel for Ms Mariconte relied upon this reasoning in the present case. Counsel invited me to take the same approach and limit any interest awarded to Mr Nobarani to the period after he first made the claim for restitution in July 2019. 2. The passage which I have quoted from Cai was subsequently referred to by the Court of Appeal in Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72. Campbell JA (with whom Handley JA and Harrison J agreed) said (at ([28]-[29]) that there might be "room for argument" about whether the passage is consistent with what was said in Heydon, and in the later decision of Antoniadis to which I refer below. 3. The Court of Appeal returned to the question in Optus Administration Pty Ltd v Wright (No 2) [2017] NSWCA 154. Gleeson JA (with whom Basten JA and Hoeben JA agreed) noted the comments about inconsistency in Woolworths. But his Honour considered (at [24]-[25]) that "any suggested inconsistency is overstated". His Honour analysed the decision in Cai as having been made in the context of "a finding of prejudice to the respondent arising from the failure of the appellant to seek an order for repayment of the money, or an order for interest on the amount outstanding, in the notice of appeal". His Honour upheld the claim for interest on the facts, even though the appellant did not seek interest until about three weeks after the appeal decision was handed down (see at [30]-[35]). 4. In Cai, judgment was entered in favour of the respondent in the District Court in the sum of $301,000. On commencing the appeal, the appellant sought a stay. As a condition of the grant of the stay, the appellant was required to pay the sum of $70,000 to the respondent. On appeal the judgment was reduced to $17,448 and the respondent had to repay $52,552. It was interest on this amount which was in issue. 5. In these circumstances, the payment of the $70,000 to the respondent was, in a sense, a consequence of the stay sought by the ultimately successful appellant. On the appellant's argument, the respondent could only have avoided a later obligation to pay interest by foregoing the $70,000 payment in the first place. It was in this context that Basten JA made the statement about the respondent not necessarily being aware of the obligation to pay interest if the appeal succeeded, where no claim for interest had been made. 6. In the present case, Mr Nobarani was required to pay the costs of $121,000 more than a year after the appeal proceedings were instituted. Clearly the decision to issue attachment against the proceeds of Mr Nobarani's personal injury claim in the hands of his solicitors was a deliberate and considered one, which was presumably made on specific instructions after advice had been provided to Ms Mariconte. The Court must proceed on the basis of what, properly advised, she should have been told. 7. In my view it is quite clear that an advisor acting properly would have advised Ms Mariconte that if she proceeded with the attachment of the proceeds of Mr Nobarani's personal injury payout, and the appeal was ultimately successful, she would be at risk of having to repay not only the proceeds of the attachment but also interest on those proceeds. The relevant decision was made at that point, and at that stage those advising Ms Mariconte could have had no expectation that Mr Nobarani would not claim restitution of the funds being attached (together with interest). There is nothing in the evidence to suggest that his failure to notify a claim for restitution until after the High Court judgment occasioned any relevant prejudice to Ms Mariconte. 8. In these circumstances, it is unnecessary for me to consider the extent of the residual conflict, if any, between and Cai and other Court of Appeal authority. The facts of this case are different from those in Cai, and prejudice to Ms Mariconte as the unsuccessful respondent has not been established. 9. It follows that Mr Nobarani was entitled to interest on the garnishee payment as from the date on which payment was made, namely 1 December 2016. 10. On the authority of Heydon, the entitlement to restitution carries with it a common law entitlement to interest. But in the present case, I think that there is another basis for the award of interest. CPA s 100 relevantly provides: (1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. 1. Accepting as I do that the Court is exercising its jurisdiction to entertain an ordinary common law claim for restitution, then this enactment allows for interest to be awarded, not on the post-judgment basis criticised in Heydon, but on a pre-judgment basis. Although counsel for Ms Mariconte suggested (contrary to his client's interest, but in accordance with his perceived obligations to the Court) that the proper rate for interest might be the post-judgment rate provided for in CPA s 101, counsel for Mr Nobarani only sought the pre-judgment rate provided for in s 100. In my view s 100 applies, and there is no reason to do other than award interest from the date the cause of action accrued, which was the date on which the garnishee payment was made. 2. This last conclusion is consistent with the approach the courts generally take to the award of pre-judgment interest under s 100. Pre-judgment interest is generally seen as a form of compensation to the ultimately successful plaintiff, and the courts rarely, if ever, decline to award pre-judgment interest because of the plaintiff's delay in advancing the claim: see Bennett v Jones [1971] 2 NSWLR 355. Stay 1. In support of the application for a stay, counsel for Ms Mariconte pointed out that in Cai, the Court of Appeal granted a stay against enforcement of the restitution order pending the determination of an appeal to the High Court. Counsel referred to the evidence of Ms Mariconte that if payment were enforced she and her rescue dogs would have nowhere to live. Counsel also referred to the strength of Ms Mariconte's claim for the grant of probate of the 2013 will. As we have seen, this was the ground of Ward JA's decision in the Court of Appeal, and the High Court acknowledged in its decision on the appeal that Ms Mariconte apparently has a strong case even though success was "not inevitable": see [2018] HCA 237 at [46]. 2. Whether to grant a stay of an order for restitution was considered in some detail by the Court of Appeal in TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. The case concerned two defamation actions, which were heard together and resulted in verdicts totalling $375,000. A stay of execution was refused and the appellant paid the judgment debts together with interest, as well as an amount of $150,000 which it was ordered to pay on account of costs. The appeal succeeded and the proceedings were remitted for a new trial. Counsel for the respondent sought to have the repayment stayed until after the new trial. 3. In its judgment, the Court emphasised that, on the authorities, restitution is not discretionary. The litigant who has paid an amount under a judgment which has later been set aside is entitled to repayment, and the Court has a corresponding obligation. The relevant provision of the rules (Supreme Court Rules 1970 (NSW), Pt 51AA r 18, the predecessor to UCPR 51.19) was described as conferring a power to award restitution and not a discretion to refuse it. The Court continued (at [14]): This Court could grant a temporary stay pending the hearing of an application for special leave, but there is no such application in this case. A temporary stay could also be granted to allow the opponent time to raise the funds by sale or mortgage of her assets, but the application has not been made on that basis. A stay is simply sought so that the opponent can retain the funds while she attempts to acquire a new right to them at the fourth trial. There is no support for such an approach in the decisions, and in our judgment the Court must give effect to the claimant's right to be repaid its money. 1. The Court of Appeal concluded that the appellant was entitled to restitution both of the judgment amounts and the $150,000 paid on account of costs, and there should be no stay. 2. A stay pending a further appeal, such as was granted in Cai, is quite different as the Court acknowledged in Antoniadis at [14] in the passage I have already quoted. Counsel for Ms Mariconte accepted that Mr Nobarani was entitled to restitution of the sum paid, together with interest from July 2019. It was not suggested that any appeal would or might be brought against my decision to allow interest for the whole of the period from December 2016 onwards, and in the event of an appeal that would be the only portion of the judgment which could arguably be stayed. 3. In my opinion, the circumstances of the present case are relevantly the same as they were in Antoniadis. On Ms Mariconte's behalf a stay was being sought simply to allow here to retain the garnishee payment while she attempted to obtain a fresh costs order. That is not a legitimate basis for a stay and Ms Mariconte's application failed for this reason alone. 4. But there is a further aspect of the case which, I think, supports this conclusion. Should Ms Mariconte succeed at the new trial, she will obtain a re-grant of probate of December 2013 will which will validate the disposal of the estate. But the most that she will obtain against Mr Nobarani in terms of payment of money is an order for costs. Any such order for costs will not include Ms Mariconte's costs of the trial in May 2015; the High Court has ordered that as between her and Mr Nobarani she must pay those costs. The best Ms Mariconte can hope for is an order for the costs of the new trial, which may (but will not necessarily) pick up some of the costs incurred in her proceedings against Mr Nobarani under the caveat motion. 5. On the other hand, Ms Mariconte has been ordered to pay Mr Nobarani's costs of the trial in May 2015, the appeal and the further appeal to the High Court. Because Mr Nobarani acted for himself at first instance and for the initial part of the appeal, he will only be able to recover disbursements for that period. But presumably he will have a substantial entitlement to costs for the hearing of the appeal and for the further proceedings in the High Court. Those costs have not been quantified and there was no evidence before me about their likely quantum, but by the same token there is no evidence which would allow me to make any estimate of the costs which Ms Mariconte might ultimately recover if she succeeds in the new trial. In these circumstances, I cannot be satisfied that even if Ms Mariconte succeeds, her ultimate entitlement to costs will exceed the garnishee payment. 6. As I have already mentioned, the possibility of Mareva-type relief, to protect Ms Mariconte against the possibility of Mr Nobarani dissipating the proceeds of the repayment, was treated by counsel as a separate matter and was not pursued in the present application. In any event, such relief almost invariably contains an exception for expenditure on ordinary living expenses (which in this case would presumably include costs of Mr Nobarani's medical treatment) and for reasonable legal costs in defending the proceedings in question (which in this case would include at least the costs of the fourth cross-claim, and probably the proceedings as a whole). 7. For these reasons, I refused Ms Mariconte's application for a stay. Costs 1. Counsel for Ms Mariconte argued that, because Mr Nobarani's legal advisers had not sought restitution when they should have, he should be deprived of his costs of the proceedings before me. There are many examples of a successful appellant being deprived of the costs of a belated application for restitution: see, for example, Antoniadis (No 2) at [20]; Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 at 663. But it is important to note that these are only examples of the Court's general discretion as to costs in the circumstances of the case: see Optus at [38]-[39]. 2. In the present case, counsel for Mr Nobarani did not make any application for any order for costs of the proceedings on his notice of motion, up to and including 1 November. Had such an application been made I would have refused it. But I consider that the costs of the cross-claim proceedings are in a separate category. At the hearing on 1 November, counsel for Ms Mariconte foreshadowed the possibility of putting forward a substantive defence to the claim for restitution. In theory, there seems no reason why, in an action for money had and received pursuant to a judgment which is subsequently set aside, the usual restitutionary defences (including the defence of change of position) would not be available. Although no such defence was ultimately put forward, it could have been. And it still proved necessary for the Court to conduct a hearing to deal with the three points put forward on Ms Mariconte's behalf in response to the claim. 3. Ms Mariconte was within her rights to seek an adjournment on 1 November and to require the restitutionary claim by Mr Nobarani to be put forward in a formal way. But in my view, the costs of the resulting proceedings should follow the event. For these reasons, I ordered that Ms Mariconte pay Mr Nobarani's costs of the cross-claim (except costs solely referable to the abandoned claim for appointment as administrator pendente lite). Orders 1. The orders of the Court on 18 December were: 1. 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. 2. I decline to make an order staying enforcement of the judgment. 3. I order the cross-claim be otherwise dismissed and the plaintiff's motion filed 23 July 2019 be otherwise dismissed. 4. I note that the dismissal of the balance of the cross claim and of the notice of motion is without prejudice to any later application the plaintiff may make for the appointment of an administrator pendente lite. 5. I order that the cross defendant pay the costs of Mr Nobarani's costs of the 3rd cross claim except costs solely attributable to the application for the appointment of an administrator pendente lite. 6. I make no order as to the costs of the notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 December 2019