Boral Limited v Foley and Bear Pty Ltd trading as J&R Industries (No 2)

In *Boral Limited v Foley and Bear Pty Ltd trading as J&R Industries (No 2)*, the New South Wales Court of Appeal considered an application for restitution following a successful appeal. Boral Limited had appealed a decision of the primary judge, and the appeal was successful. However, the notice of appeal did not explicitly seek restitution of monies paid by Boral to J&R Industries in satisfaction of the primary judge's orders. Boral subsequently filed a motion seeking an order for restitution, invoking the slip rule.

The central legal issue before the Court of Appeal was whether it was appropriate to order the payment of interest on the amount to be repaid by J&R Industries to Boral. This involved determining the scope of the court's power under the Uniform Civil Procedure Rules (UCPR) to amend or supplement its orders after judgment, particularly in circumstances where the original appeal judgment did not specifically address the recovery of interest.

The Court of Appeal, applying UCPR r 36.17 (the slip rule), found it appropriate to make an order for restitution. The court reasoned that the purpose of the slip rule was to correct errors or omissions in judgments to ensure they accurately reflected the court's intention and to do justice between the parties. In this instance, the court considered that it was just and equitable to order J&R Industries to repay the amount Boral had paid under the primary judge's orders, along with interest. The court determined that the interest should be calculated at the rate prescribed by UCPR r 36.7 from the date Boral sought the restitutionary order until the date of repayment.

Consequently, the Court of Appeal ordered that J&R Industries pay Boral the sum of $145,219.62, representing the amount paid by Boral in satisfaction of the primary judge's orders. This payment was to bear interest at the prescribed rate from 1 February 2017 until repayment and was to be made within seven days of the judgment. The court also ordered that each party bear their own costs of Boral's motion filed on 1 February 2017.