Baulkham Hills Shire Council v Pascoe

[2000] NSWCA 322

NEW SOUTH WALES COURT OF APPEAL

CITATION:         BAULKHAM HILLS SHIRE COUNCIL v PASCOE [2000]  NSWCA 322

FILE NUMBER(S):
40092/99

HEARING DATE(S):          2 November 2000

JUDGMENT DATE:           02/11/2000

PARTIES:
Baulkham Hills Shire Council - Claimant
Kevin John Pascoe - Opponent

JUDGMENT OF: Sheller JA Giles JA Brownie AJA   

LOWER COURT JURISDICTION:    District Court

LOWER COURT FILE NUMBER(S):               1146/98

LOWER COURT JUDICIAL OFFICER:          Garling DCJ

COUNSEL:
Harry Woods - Claimant
N/A - Opponent

SOLICITORS:
Phillips Fox - Claimant
N/A - Opponent

CATCHWORDS:
JUDGMENT AND ORDERS - corrections under slip rule - Supreme Court Rules, Pt 20 r10(1)
RESTITUTION - repayment of judgment debts - where successful appellant had already paid money to the respondent - NR

LEGISLATION CITED:
Supreme Court Act 1970
Supreme Court Rules

DECISION:
1. Respondent to repay to the appellant the sum of $73,034.70 paid to him in satisfaction of the judgment hereby set aside, together with interest on that sum from date of payment by the appellant to date of repayment by the respondent such interest to be calculated in accordance with the rates prescribed in the Supreme Court Rules. It is intended that this order become order 3 in the orders of the Court made on 19 November 1999
2.  No order as to costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40092/99

SHELLER JA
GILES JA
BROWNIE AJA

Thursday, 2 November 2000

BAULKHAM HILLS SHIRE COUNCIL v PASCOE

JUDGMENT

1. SHELLER JA: Judgment in this appeal was given by the Court as presently constituted on 19 November 1999.  The appellant, Baulkham Hills Shire Council’s appeal was allowed with costs.  The effect of that was that a verdict given by the trial Judge in favour of the respondent against the Council was set aside.

2. Before the appeal was heard and instead of judgment being enforced against the Council, the Council agreed to make the payment to the respondent, Kevin John Pascoe, of $67,811.82, and to the Health Insurance Commission of $7,534.65.  Part of that amount of $7,534.65 was forwarded by the Health Insurance Commission to Mr Pascoe.  In the outcome it appears that Mr Pascoe received a total amount of $73,034.70.

3. After the Court gave judgment the Council’s solicitor wrote to the solicitor on the record for Mr Pascoe seeking repayment of the total amount paid.  The first letter was written on 23 November 1999.  In the absence of a reply, a follow-up letter was written to the solicitor on 23 December 1999, and a further letter on 2 February 2000.  In the letter of 2 February 2000 the solicitors set out the basis upon which they claimed to be entitled to recovery of the sum claimed.

4. On 9 February 2000 Mr Pascoe’s solicitor wrote back advising that they had been unable to get instructions with respect to repaying the settlement moneys.  The Council’s solicitors wrote again to Mr Pascoe’s solicitor on 11 February 2000.  On 15 February 2000 the Council’s solicitors wrote to Mr Pascoe stating that Somerville & Co, who had been his solicitors, had provided them with a notice of intention to cease to act.  The letter then went on in some detail to claim upon Mr Pascoe the amount of $75,346.47, explaining in some detail how that claim was made.

5. On 21 May 2000 John Edlund served upon Mr Pascoe a letter from the Council’s solicitors together with a draft notice of motion and supporting affidavit.  The service of those documents is evidenced by an affidavit of Mr Edlund on 24 May 2000.  On 15 October 2000 Mr Edlund served upon Mr Pascoe the signed and sealed notice of motion and the supporting affidavit.  This is evidenced by Mr Edlund’s affidavit of 19 October 2000.

6. On 9 June 2000 the Council’s solicitors received a letter from Somerville & Co which stated, so far as relevant:

   “We have been instructed that you intend to commence proceeding to recover the damages paid to the plaintiff in the above matter.

   We have been instructed that the plaintiff has no assets and does not receive an income.  We have been instructed that the proceedings will not be defended, nor will any action to bankrupt the plaintiff.”

7. This notice of motion was filed on 22 September 2000.  In addition to Mr Edlund’s affidavit, the notice of motion is supported by an affidavit of Mr Down of 15 March 2000, which sets out the material and annexes documents to which I have referred.  When the matter was called on this morning there was no appearance for Mr Pascoe.

8. The order sought in the notice of motion is sought pursuant to Pt 20 r10(1) of the Supreme Court Rules, the “slip rule”.  It seeks that the respondent repay to the appellant the sum of $75,346.47, a sum which has been amended during the course of hearing to $73,034.70, paid to him in satisfaction of the judgment hereby set aside, together with interest on that sum from the date of payment by the appellant to the date of repayment by the respondent, such interest to be calculated in accordance with the rates prescribed in the Supreme Court Rules.  Further, an order for costs was also sought by the Council against Mr Pascoe.

9. Mr Woods, who appeared for the Council, has provided the Court with helpful written submissions which refer to cases supporting the course that is here proposed.  Mr Woods also provided help in the course of oral submissions fairly made to the Court.

10. There seems no doubt that it is appropriate that the order sought be made pursuant to the “slip rule” on the basis, as is the case, that those representing the Council at the hearing of the appeal overlooked seeking this order at the time of the hearing of the appeal.

11. Reference is made to the decision of the High Court in Commonwealth of Australia v McCormack (1984) 155 CLR 273 particularly at 276-7. The basis for the entitlement to an order for repayment is to be found in the principle of restitutio in integrum, which is discussed in that case.

12. I have no doubt that it is appropriate that the order for repayment should be made. Part of that order is that the respondent pay interest on the sum from the date of payment by the appellant to him of the amount to which I have referred. In that respect at least two different ways have been put forward as supporting the conclusion that interest should run from that date. The first is the discretion granted to the Court so to order pursuant to s95(1) of the Supreme Court Act 1970 an approach which was discussed and favoured by the then President, Kirby P, in Government Insurance Office of New South Wales v Healey (No 2) (1991) 22 NSWLR 380, particularly at 386-7.

13. The other approach  is to regard the order as encompassed by the application of the principle of restitutio in integrum, a view preferred by the Court in Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1991) 27 NSWLR 659, particularly at 663.

14. In my opinion, it is unnecessary for present purposes to choose one rather than the other as the appropriate ground for making such an order.  I am quite satisfied that in the present case the respondent, Mr Pascoe, should be ordered to pay interest on the amount of the overpayment to be recovered from the date that payment was made to him.

15. There remains only the question of costs.  As was pointed out by Kirby P in Government Insurance Office of New South Wales v Healey (No 2), this application comes about as a result of an oversight of those acting for the appellant.  It is an order that could, and should have been made at the time the appeal was disposed of.  It is true, as was urged by Mr Woods, that letters were written to Mr Pascoe making clear to him the grounds upon which repayment was required to be made by him.  However, in all the circumstances, I think it appropriate that there be no order as to costs.

16. Accordingly, the order that the Court makes is that the respondent will pay to the appellant the sum of $73,034.70 paid to him in satisfaction of the judgment hereby set aside, together with interest on that sum from the date of payment by the appellant to the date of repayment by the respondent, such interest to be calculated in accordance with the rates prescribed in the Supreme Court Rules.  It is intended that that order become order 3 in the orders of the Court made on 19 November 1999.

17. GILES JA:  I agree.

18. BROWNIE AJA:  I agree.

19. SHELLER JA:  The orders of the Court will be as I have announced.

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LAST UPDATED:              10/11/2000