BHP Steel (JLA) Pty Ltd v Khan (No 2)

BHP Steel (JLA) Pty Ltd (the appellant) sought repayment of money paid under a judgment that had subsequently been set aside on appeal. The appeal court had ordered a new trial limited to the issue of damages, meaning the appellant's liability was no longer in dispute, only the quantum of damages payable to the respondent. The case was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the appellant was entitled to the repayment of the money paid under the original judgment, notwithstanding that the judgment had been set aside only to allow for a new trial on damages, and liability remained established.

The Court of Appeal reasoned that the original judgment, having been set aside, was no longer a valid basis for the respondent retaining the money paid under it. The fact that the new trial was limited to damages did not alter the fundamental position that the money was paid pursuant to a judgment that was no longer in effect. The court applied the principle that where a judgment is set aside, money paid under that judgment should be repaid, even if liability is still to be determined or, as in this case, only the quantum of damages remains in issue.

The Court of Appeal ordered judgment for the appellant for $267,812 and ordered the appellant to pay the respondent’s costs of the application.