Hume v Walton (No 2)

[2005] NSWCA 458

CITATION:	Hume v Walton (No 2) [2005] NSWCA 458
HEARING DATE(S):	Written submissions
JUDGMENT DATE:	16 December 2005
JUDGMENT OF:	Tobias JA at 1; McColl JA at 1
DECISION:	(1) Judgment for the claimant in the sum of $226,938.95.; (2) Opponent to pay interest on $205,028.35 in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005.; (3) Stay the enforcement of the judgment until the disposition of the opponent’s proceedings in District Court matter No 606/02.; (4) Claimant to pay the opponent’s costs of the Motion.

CATCHWORDS:	RESTITUTION - recovery of money paid under judgment - application for repayment after - appeal - - JUDGMENTS AND ORDERS - stay (ND)
LEGISLATION CITED:	Health and Other Services (Compensation) Act 1995 (Cth) Social Security Act 1991 (Cth) Suitors’ Fund Act 1951 Uniform Civil Procedure Rules 2005
CASES CITED:	Hume v Walton [2005] NSWCA 148 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No2) (1992) 27 NSWLR 659 TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 TCN Channel Nine v Antoniadis (No 2) [1999] NSWCA 104; (1999) 48 NSWLR 381
PARTIES:	John Hume (Claimant) Vicki May Walton (Opponent)
FILE NUMBER(S):	CA 41223/03
SOLICITORS:	T L Lawyers (Claimant) Armstrongs (Opponent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 606/02
LOWER COURT JUDICIAL OFFICER:	Sidis DCJ

CA 41223/03
DC 606/02

TOBIAS JA
McCOLL JA

Friday, 16 December 2005

John HUME v Vicki May WALTON (No 2)

Judgment

1 THE COURT: On 9 May 2005 this Court, as presently constituted allowed an appeal by John Hume, the claimant, from Sidis DCJ’s judgment in favour of Vicki May Walton, the opponent, and remitted the matter to the District Court for reassessment of the opponent’s damages. The opponent was ordered to pay the claimant’s costs of the appeal but to have a certificate under the Suitors’ Fund Act 1951 if otherwise entitled. Costs of the first trial were to be within the discretion of the judge conducting the new trial: Hume v Walton [2005] NSWCA 148.

2 The claimant now seeks orders for the repayment of monies paid to the opponent under Sidis DCJ’s judgment.

3 The claimant did not seek an order for repayment of the part payment of the judgment in its notice of appeal, during the hearing of the appeal or when judgment was delivered. It should have done so; however, its omission does not prevent it making the present application: Production Spray Painting and Panel Beating Pty Limited & Ors v Newnham & Ors [No 2] (1991) 27 NSWLR 659 at 661.

Background

4 The opponent was injured in a motor vehicle accident occurred when the opponent’s vehicle turned into the path of her vehicle which was travelling at a speed of about 70 kph. The trial before Sidis DCJ was concerned only with damages, liability having been admitted. On 3 December 2003, her Honour delivered her reasons for judgment. The proceedings before her Honour were then adjourned to 4 December 2003 to allow the parties to agree upon the verdict to be entered for the opponent and to deal with issues of costs.

5 On 4 December 2003, counsel for the claimant, Mr Renshaw, advised her Honour that the parties had agreed that there would be a stay of the judgment on condition that the claimant pay half the judgment sum plus costs as agreed or assessed. Sidis DCJ then ordered that there be a verdict and judgment for the opponent in the sum of $460,566.71 and that her orders be stayed be stayed for a period of 28 days on the following conditions:

“(1) That the defendant initiates within 28 days and pursues diligently an appeal;
(2) That the defendant pays to the plaintiff one half of the amount awarded within that 28 day period;
(3) There is no stay on the order for costs”.

6 On 18 February 2004 according to its submissions the claimant forwarded to the opponent’s solicitors part payment of the judgment moneys in the sum of $162,316.08 after statutory deductions to Centrelink of $21,910.60 and the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act 1995 (Cth) of $46,056.67 being total payments of $230,283.35. There seems to be some confusion about the amount paid to the Health Insurance Commission (HIC). HIC’s Notice of Past Benefits letter valid until the day of judgment claimed an amount of $3344.30 payable to it and that amount is referred to elsewhere in both the claimant’s and the opponent’s submissions.

7 By letter dated 13 May 2005 the claimant asked the opponent to reimburse the judgment moneys together with interest calculated at $22,915.29 as at 12 May 2005. It received no response.

8 On 22 June 2005 the claimant filed an application in the District Court to stay the remitted proceedings. On 16 August 2005 the claimant filed a Notice of Motion in the District Court seeking that the opponent’s proceedings be stayed or, in the alternative, dismissed. The claimant’s application was listed for hearing on 10 October 2005.

9 On 22 August 2005 the claimant filed a Statement of Claim in the District Court seeking a judgment against the respondent for the amount paid as a result of the parties’ 4 December 2003 agreement. By motion filed on 6 October 2005 the opponent moved the District Court to stay that Statement of Claim. There is no information before the Court as to the progress of the Statement of Claim or the outcome of either parties’ Notices of Motion.

10 By Notice of Motion filed 28 September 2005 the claimant moved this Court for the following orders:

“(1) The [opponent] be ordered to pay to the [claimant’s] CTP Insurer, Allianz Australia Insurance Limited, the sum of $208,372.75 less any moneys withheld by the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Act 1995 (as amended).
(2) Centrelink be ordered to repay to the [claimant’s] CTP Insurer, Allianz Australia Insurance Limited the sum of $21,910.60.
(3) The [opponent] be ordered to pay interest on the moneys paid by the [claimant] to the [claimant’s] CTP Insurer, Allianz Australia Insurance Limited calculated in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005.
(4) The [opponent] pay the [claimant’s] costs.”

11 The parties subsequently filed affidavits and written submissions which were referred to the Court for consideration in Chambers. The opponent drew attention to the fact that the original stay of proceedings had been agreed to by the claimant. The Court sought details of that and, on 6 December 2005, was provided with a copy of the proceedings before Sidis DCJ on 4 December 2003.

Submissions

12 The claimant submits that following the reversal of the judgment he is entitled to restitution of the moneys paid to the opponent under the judgment: TCN Channel Nine Pty Limited v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381.

13 The opponent does not dispute that entitlement but submits that the Court has a discretion to mould any order for restitution on discretionary grounds to provide for (inter alia) the deferral of the date of repayment of moneys ordered to be repaid: see Antoniadis at 383. She seeks to distinguish Antoniadis, where such a stay was refused (at 384 – 385) on the basis that in that case the trial judge and another had refused to stay execution of the judgments pending appeal whereas, in this case, the stay was by agreement. She also points out that, although there was no stay in relation to the costs ordered by the primary judge, the claimant has not paid her costs.

14 The opponent has adduced evidence that, after deductions for her legal costs, the repayments to Centrelink and the HIC, she received a net amount of $136,413.87 out of the amount of $230,283.35 paid over by the claimant as a result of the agreed stay. She deposes in essence, that she had spent that amount in meeting existing obligations, both legal and moral, as well as household expenses.

15 Mr Churches, the opponent’s solicitor, deposes that the damages rehearing which is to take place as a result of this Court’s first judgment is likely to take place in February or March 2006.

16 In his written submissions he acknowledges that the opponent is unable to meet immediately, or possibly in the long term, any order for repayment but submits that having regard to the imminent rehearing of the matter, this Court should exercise its discretion to order that the date for repayment of the moneys paid over be deferred either until the rehearing of the opponent’s claim or until a specified date in the early part of 2006. He did not nominate any date which would be appropriate in the latter respect.

Consideration

17 As the opponent acknowledges it is uncontroversial that the claimant is entitled to restitution of the moneys paid under the judgment set aside: Production Spray Painting and Panel Beating Pty Limited & Ors v Newnham & Ors [No 2]; TCN Channel Nine Pty Limited v Antoniadis [No 2].

18 In Antoniadis the Court observed (at [8]) that “orders for restitution may be moulded on discretionary grounds to provide for matters such as the date for repayment or delivery of possession, and perhaps for a stay of execution on appropriate security being given”. The Court also observed (at [14]) that the opponent in that case had sought a stay “so that [she] can retain the funds while she attempts to acquire a new right to them at the fourth trial”. The Court concluded that there was “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 moneys”.

19 Antoniadis arose out of the third trial of the opponent’s defamation actions in which the jury had found verdicts in her favour totalling $375,000. The trial judge had refused to stay execution of the judgments pending an appeal to this Court and a further application for stay of execution made to a judge of this Court had been dismissed. The claimant’s appeal against the judgments had succeeded and this Court had ordered that there be a new trial on all issues: TCN Channel Nine v Antoniadis (1998) 44 NSWLR 682. In that case, on appeal, the Court had not been informed that the judgment debt as well as moneys on account of costs had already been paid by the claimant nor was it was asked at the hearing of the appeal to order the opponent to repay those moneys. The Court commented (at [3]) that:

“This question, which is of some importance to the client, is so frequently overlooked by legal advisors acting for appellants that an embarrassing body of case law has accumulated which establishes that appropriate relief can be granted after the appeal has been determined: see Production Spray Paining and Panel Beating Pty Limited v Newnham [No 2] … at 661.”

The same observation can be made in this case where the application for a restitution order was made almost six months after the judgment was delivered and the final materials in relation to the application not provided to the Court until 6 December 2005.

20 In our view this is a case in which it is appropriate notwithstanding the claimant’s entitlement to restitution, that enforcement of the restitution order be stayed pending disposition of the new trial ordered whether by settlement or judgment. Unlike Antoniadis, the new trial is limited to damages. It might be inferred that the claimant accepted the opponent would, in due course, recover a sum in the order of that it agreed to pay pending appeal. In addition the rehearing of the remitted action will take place very soon. If a stay is not granted, it is probable that the opponent will be deprived of the opportunity to pursue that entitlement.

Interest

21 As to interest, the claimant conceded, in effect, in its written submissions that the question of the principal on which interest should be calculated was debatable having regard to those sums which were paid to Centrelink and the HIC. It proposed interest be calculated either on all the moneys paid over on 18 February 2004 or only on the net sum i.e. after deduction of the amounts paid to Centrelink and the HIC. The opponent submits that the appropriate amount for interest is the lower figure on the basis that the moneys paid to Centrelink and the HIC were paid pursuant to a statutory obligation to do so and that she had not enjoyed the use of those funds since they were paid on or about 18 February 2004. We accept the opponent’s submissions.

22 Accordingly while there will be a judgment for the claimant in the amount of $226,938.95, interest should only be paid on $205,028.35, being that amount net of the payment to Centrelink.

23 The claimant does not seek to recover the moneys paid to the HIC, whatever their amount.

Costs

24 The opponent submits that the claimant should pay her costs of the Notice of Motion. She draws to the Court’s attention the fact that the claimant had not sought an order in respect of the interim payment made under the judgment at the hearing of the appeal. In Production Spray Painting and Antoniadis, in like circumstances, the claimant was ordered to pay the opponent’s costs of the motion and, in our view, that is the appropriate order, in this case.

Orders

25 The orders as framed in the claimant’s Notice of Motion seek an order that Centrelink be ordered to repay the sum of $21,910.60. In our view that is inappropriate order. Centrelink is not a party to these proceedings. The moneys paid to Centrelink were paid pursuant to ss 1182 – 1184E of the Social Security Act 1991 (Cth). Although we have not examined those provisions closely, payment under them to the Commonwealth depended upon the claimant, or his insurer, becoming liable to pay compensation to the opponent. It would undoubtedly be open to the claimant and the opponent to draw Centrelink’s attention to the Court’s order that the opponent repay the moneys paid over to it and to seek recovery of those funds. Having regard, however, to the fact that liability at the trial was admitted, the parties may also think, as a matter of common sense, that it would be better to leave the Centrelink moneys where they are.

26 We make the following orders:

(1) Judgment for the claimant in the sum of $226,938.95.

(2) Opponent to pay interest on $205,028.35 in accordance with Schedule 5 of the Uniform Civil Procedure Rules 2005.

(3) Stay the enforcement of the judgment until the disposition of the opponent’s proceedings in District Court matter No 606/02.

(4) Claimant to pay the opponent’s costs of the Motion.

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