Cai v Zheng (No 2) - [2009] NSWCA 317

New South Wales

Court of Appeal

CITATION: CAI v ZHENG (NO 2) [2009] NSWCA 317

HEARING DATE(S): On the papers

JUDGMENT DATE:
6 October 2009

JUDGMENT OF: Giles JA at 1; Basten JA at 6; Hoeben J at 41

DECISION:
1. In addition to the orders made on 25 February 2009:
(6) Order that the respondent pay to the appellant –
(i) the amount by which the payment of $70,000 made by the appellant as a condition of the stay of the judgment below exceeded the amount of the judgment obtained in this Court, namely $52,552.09;
(ii) such payment to bear interest at the rate prescribed from time to time in Schedule 5 of the Uniform Civil Procedure Rules, calculated from 28 February 2009 until the date of repayment;
(iii) such repayment to be made within seven days of the date on which the High Court delivers judgment in the matter presently pending in that Court, unless the judgment results in an award of damages in favour of the respondent in excess of $70,000.
2. Order that the appellant pay the respondent’s costs of the motion.

CATCHWORDS: APPEAL – powers of court – restitution – stay of primary judgment conditional upon part payment – judgment on appeal reduced to amount less than part payment – whether circumstances rendered repayment unjust - JUDGMENT – proceedings disposed of on appeal – application for order of restitution – whether appropriate for single judge to deal with application where variation of orders given on appeal sought – Supreme Court Act 1970 (NSW), s 46 - PROCEDURE – application for additional orders – orders appropriately sought in appeal – prejudice suffered by respondent – whether appropriate to limit interest on repayment

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 46
Supreme Court Rules, Pt 51, r 26
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 51.19, 51.54

CATEGORY: Consequential orders

CASES CITED: Ambulance Service of New South Wales v Worley (No 2) [2006] NSWCA 236; 67 NSWLR 719
Cai v Zheng [2009] NSWCA 13
Government Insurance Office of New South Wales v Healey [No 2] (1991) 22 NSWLR 380
Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600
New South Wales v Fahy [2008] NSWCA 34
Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659
Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516
TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381

PARTIES: Deju Cai - Appellant
Tian Zhen Zheng - Respondent

FILE NUMBER(S): CA 40610/07

COUNSEL: Mr SG Campbell SC/Mr SE McCarthy - Appellant
Ms S Norton SC/Ms M Fraser - Respondent

SOLICITORS: McLachlan Chilton - Appellant
Bryden's Law Office - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3644/2003

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 21 August 2007

CA 40610/07
DC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Cai v Zheng (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWCA 317
Decision Date: 6 October 2009

CaseChat Overview and Summary

The parties to this proceeding were Cai (appellant) and Zheng (respondent). The dispute concerned an application for restitution following an appeal. The court determining this matter was the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the respondent should be ordered to repay to the appellant a sum of money paid as a condition of a stay of a primary judgment, given that the appeal judgment ultimately awarded less than that sum. The court also considered whether it was appropriate for a single judge to deal with an application for restitution where variation of the appeal orders was sought, and whether interest should be awarded on the repayment, and if so, at what rate and from what date.

The Court of Appeal reasoned that the principle of restitution required the repayment of money paid under a judgment that was subsequently varied or set aside on appeal. The court found that the $70,000 paid by the appellant as a condition of the stay of the primary judgment exceeded the amount ultimately awarded on appeal. Therefore, the respondent was unjustly enriched by the excess amount. The court applied the principle that where a party has paid money under a judgment which is later reduced on appeal, the excess should be repaid. The court also considered the appropriate rate of interest and the timing of repayment, taking into account a pending High Court matter.

The Court of Appeal ordered that the respondent pay to the appellant the sum by which the $70,000 payment exceeded the judgment obtained on appeal, which was $52,552.09. This repayment was to bear interest at the rate prescribed by the Uniform Civil Procedure Rules from 28 February 2009 until repayment. The repayment was to be made within seven days of the High Court delivering judgment in a pending matter, unless that judgment resulted in an award of damages in favour of the respondent exceeding $70,000. The appellant was ordered to pay the respondent’s costs of the motion.

Orders

Orders of the court

1. In addition to the orders made on 25 February 2009:

(6) Order that the respondent pay to the appellant –

(i) the amount by which the payment of $70,000 made by the appellant as a condition of the stay of the judgment below exceeded the amount of the judgment obtained in this Court, namely $52,552.09;

(ii) such payment to bear interest at the rate prescribed from time to time in Schedule 5 of the Uniform Civil Procedure Rules, calculated from 28 February 2009 until the date of repayment;

(iii) such repayment to be made within seven days of the date on which the High Court delivers judgment in the matter presently pending in that Court, unless the judgment results in an award of damages in favour of the respondent in excess of $70,000.

2. Order that the appellant pay the respondent’s costs of the motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CAI v ZHENG (NO 2) [2009] NSWCA 317
HEARING DATE(S):	On the papers
JUDGMENT DATE:	6 October 2009
JUDGMENT OF:	Giles JA at 1; Basten JA at 6; Hoeben J at 41
DECISION:	1. In addition to the orders made on 25 February 2009: (6) Order that the respondent pay to the appellant – (i) the amount by which the payment of $70,000 made by the appellant as a condition of the stay of the judgment below exceeded the amount of the judgment obtained in this Court, namely $52,552.09; (ii) such payment to bear interest at the rate prescribed from time to time in Schedule 5 of the Uniform Civil Procedure Rules, calculated from 28 February 2009 until the date of repayment; (iii) such repayment to be made within seven days of the date on which the High Court delivers judgment in the matter presently pending in that Court, unless the judgment results in an award of damages in favour of the respondent in excess of $70,000. 2. Order that the appellant pay the respondent’s costs of the motion.

CATCHWORDS:	APPEAL – powers of court – restitution – stay of primary judgment conditional upon part payment – judgment on appeal reduced to amount less than part payment – whether circumstances rendered repayment unjust - JUDGMENT – proceedings disposed of on appeal – application for order of restitution – whether appropriate for single judge to deal with application where variation of orders given on appeal sought – Supreme Court Act 1970 (NSW), s 46 - PROCEDURE – application for additional orders – orders appropriately sought in appeal – prejudice suffered by respondent – whether appropriate to limit interest on repayment
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 46 Supreme Court Rules, Pt 51, r 26 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 51.19, 51.54
CATEGORY:	Consequential orders
CASES CITED:	Ambulance Service of New South Wales v Worley (No 2) [2006] NSWCA 236; 67 NSWLR 719 Cai v Zheng [2009] NSWCA 13 Government Insurance Office of New South Wales v Healey [No 2] (1991) 22 NSWLR 380 Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600 New South Wales v Fahy [2008] NSWCA 34 Production Spray Painting & Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68; 208 CLR 516 TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381
PARTIES:	Deju Cai - Appellant Tian Zhen Zheng - Respondent
FILE NUMBER(S):	CA 40610/07
COUNSEL:	Mr SG Campbell SC/Mr SE McCarthy - Appellant Ms S Norton SC/Ms M Fraser - Respondent
SOLICITORS:	McLachlan Chilton - Appellant Bryden's Law Office - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3644/2003
LOWER COURT JUDICIAL OFFICER:	Garling DCJ
LOWER COURT DATE OF DECISION:	21 August 2007