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…

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.

Continue reading Hume v Walton (No 2)

Details

AGLC: Hume v Walton (No 2) [2005] NSWCA 458
Case: [2005] NSWCA 458
Decision Date: 16 December 2005

CaseChat Overview and Summary

In *Hume v Walton (No 2)*, the claimant sought the repayment of money paid under a previous judgment, following an appeal. The matter came before Tobias and McColl JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the claimant was entitled to recover money paid pursuant to a judgment that was subsequently overturned on appeal. The court was required to consider the principles of restitution and the circumstances under which money paid under a judgment can be recovered when that judgment is no longer valid.

The court reasoned that where a judgment is set aside or varied on appeal, the party who has paid money under that judgment is generally entitled to restitution. This principle is based on the idea that it would be unjust to allow a party to retain money paid under a judgment that has been found to be erroneous. The court applied the established legal principle that money paid under a judgment which is subsequently reversed or varied should be repaid to the extent of the reversal or variation.

The Court of Appeal ordered judgment for the claimant in the sum of $226,938.95, with interest to be paid on a portion of that sum in accordance with the Uniform Civil Procedure Rules 2005. However, the enforcement of this judgment was stayed until the determination of the opponent's proceedings in the District Court. The claimant was also ordered to pay the opponent's costs of the motion.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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