Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) [2017] NSWCA 154 Hearing dates: On the papers Decision date: 23 June 2017 Before: Basten JA at [1];
Hoeben JA at [2];
Gleeson JA at [3]Decision: (1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017.
(2) Each party to pay its costs of the motion of 9 March 2017.Catchwords: RESTITUTION – other matters – recovery of money paid under judgment or order – where money paid by appellant pursuant to declaration by primary judge that appellant must indemnify second respondent under Workers Compensation Act 1987 (NSW), s 151Z(1)(d) – where declaration is set aside on appeal – where restitution not sought in notice of appeal or at the hearing – whether appropriate to deny interest in the present case.
PROCEDURE – where appellant seeks a further order for restitution of moneys paid under a declaration which is set aside on appeal – where appellant failed to claim restitution in the notice of appeal or at the hearing of the appeal – where omission to claim restitution was an oversight by the appellant’s lawyers – Uniform Civil Procedure Rules 2005 (NSW), r 51.19.
COSTS – restitution and interest on moneys paid under a judgment later set aside – where relief not sought in notice of appeal or at the hearing – appropriate order for costs of later application for restitution – where appellant seeks an indulgence and respondent to motion had no basis to oppose the making of an order for restitution.Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 75A(10)
Uniform Civil Procedure Rules 2005 (NSW), rr 36.7(1), 42.1, 51.19, 51.54
Workers Compensation Act 1987 (NSW), s 151Z(1)(d)Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (No 2) [2016] NSWCA 149
Boral Limited v Foley & Bear Pty Ltd t/as J&R Industries (No 2) [2017] NSWCA 108
Cai v Zheng (No 2) [2009] NSWCA 317
Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21
Perisher Blue Pty Ltd v Vidakovic (No 2) [2006] NSWCA 326
Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659
TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104
Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72Category: Procedural and other rulings Parties: Optus Administration Pty Limited (Appellant)
Glenn Wright by his tutor James Stuart Wright (First Respondent)
IPA Personnel Pty Limited (Second Respondent)Representation: Counsel:
Solicitors:
GM Watson SC / DF Villa (Appellant)
L Morgan (Second Respondent)
Hunt and Hunt Lawyers (Appellant)
Sparke Helmore (Second Respondent)
File Number(s): 2015/115083 Decision under appeal
- Court or tribunal:
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- Case
- [2017] NSWCA 154
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether it was appropriate to grant the appellant restitution of the moneys paid under the set-aside declaration, and whether interest should be awarded on those moneys. A further issue concerned the appropriate costs order for the application for restitution, given that the appellant had failed to seek this relief earlier. The Court also considered the application of rule 51.19 of the *Uniform Civil Procedure Rules 2005* (NSW) in relation to the appellant's failure to include the claim for restitution in its original appeal documents.
The Court determined that the appellant was entitled to restitution of the moneys paid. It acknowledged that the omission to claim restitution in the notice of appeal or at the hearing was an oversight by the appellant's lawyers. Despite this oversight, the Court found that it was appropriate to grant the relief sought, effectively ordering the repayment of the sum paid under the now-invalid declaration. The Court also ordered that judgment be entered for the appellant against the second respondent for the principal sum of $94,431.03, with effect from 24 May 2017. Regarding the costs of the motion for restitution, the Court ordered that each party bear its own costs, recognising that the appellant sought an indulgence and the respondent had no basis to oppose the making of the restitution order.
Orders
Orders of the court
(1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017.
(2) Each party to pay its costs of the motion of 9 March 2017.
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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