Hyland and Warnick v Campbell and Campbell

[1995] QCA 322

IN THE COURT OF APPEAL	[1995] QCA 322
SUPREME COURT OF QUEENSLAND

Appeal No. 265 of 1993.

Brisbane

[Hyland v. Campbell]

BETWEEN:

WILLIAM DAWSEY CAMPBELL and KERRY
ANN CAMPBELL (formerly trading as

W D CAMPBELL & COMPANY)

(Plaintiffs) Respondents

AND:

GEOFFREY LEON HYLAND and LAWRENCE
MICHAEL WARNICK (formerly trading as

HYLAND & CO)

(First Defendants) Appellants

AND:

LAWRENCE MICHAEL WARNICK, IAIN CAMPBELL
MARSHALL, LIONEL CEDRICK JULIAN LEES and
GEOFFREY LEON HYLAND (formerly trading as

LEES HYLAND & MARSHALL)

(Second Defendants) Appellants

AND:

WILLIAM FREDERICK APLIN

(Third Defendant)

___________________________________________________________________

Pincus J.A. Davies J.A. Williams J.

___________________________________________________________________

Judgment delivered 30/05/1995

Further Order delivered 01/08/1995

Further Order of the Court.
___________________________________________________________________

IT IS ORDERED THAT THE SUM OF $150,000 BE REPAID TO THE APPELLANTS BY THE RESPONDENTS TOGETHER WITH INTEREST AT THE RATE OF 10 PER CENT PER ANNUM FROM 17 JANUARY 1994 TO 30 MAY 1995 MAKING A TOTAL OF $170,465.75.

___________________________________________________________________

CATCHWORDS: REPAYMENT ORDER - damages reduced on appeal - damages paid by appellant prior to hearing of appeal - successful appellant entitled to repayment with interest. Jupiters Management Ltd v. Ryan (C.A. 52/1991, 28/4/1992, unreported)

Commonwealth v. McCormack (1984) 155 C.L.R. 273.

Counsel:	Mr R Chesterman QC, with him Mr J McKenna for the appellants. Mr Campbell appeared on behalf of himself and the respondent Mrs Campbell.
Solicitors:	Feez Ruthning for the appellants.
Hearing date:	14 July 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 265 of 1993.

Brisbane

Before Pincus J.A. Davies J.A. Williams J.

[Hyland v. Campbell]

BETWEEN:

WILLIAM DAWSEY CAMPBELL and KERRY
ANN CAMPBELL (formerly trading as

W D CAMPBELL & COMPANY)

(Plaintiffs) Respondents

AND:

GEOFFREY LEON HYLAND and LAWRENCE
MICHAEL WARNICK (formerly trading as

HYLAND & CO)

(First Defendants) Appellants

AND:

LAWRENCE MICHAEL WARNICK, IAIN CAMPBELL
MARSHALL, LIONEL CEDRICK JULIAN LEES and
GEOFFREY LEON HYLAND (formerly trading as

LEES HYLAND & MARSHALL)

(Second Defendants) Appellants

AND:

WILLIAM FREDERICK APLIN

(Third Defendant)

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 30/05/1995

Further Order delivered 01/08/1995

In this matter judgment was entered in the Supreme Court on 25 November 1993

in favour of the respondent against the appellants in the sum of $457,079.24. The

appellants paid the judgment sum with interest in three instalments; the final and largest instalment was paid on 17 January 1994. The appeal was heard on 14 July 1994 and on

30 May 1995, judgment was delivered in favour of the appellants resulting in the reduction

of the judgment below by $150,000.

The successful appellants now seek an order that the amount of $150,000 be

repaid with interest in accordance with the practice of this Court laid down in Jupiters

Management Ltd v. Ryan (CA 52/1991, 28/4/92, unreported). In that case the court followed

the approach of the High Court in Commonwealth v. McCormack (1984) 155 CLR 273 at

276,277 that an “appellant who has satisfied a judgment for the payment of the money is

entitled, on the reversal of the judgment, to repayment of the money paid by him with

interest”. It is of course desirable that the question of an order for repayment be raised in

the notice of appeal, where appropriate: O.70 r.2(2)(c).

The appellants did not indicate, at the time this appeal was heard, that the judgment

sum had been paid and that a repayment order would be sought. Nor was there any

mention of the matter in the outlines of argument. In the whole of the circumstances,

interest will be allowed to the date of this court’s judgment.

Accordingly, it is ordered that the sum of $150,000 be repaid to the appellants by

the respondents together with interest at the rate of 10 percent per annum from 17 January

1994 to 30 May 1995 making a total of $170,465.75.