Owlstara v State of New South Wales (No 2)

The Court of Appeal of New South Wales considered an application by the appellant, Owlstara, to vary a previous appeal judgment. The dispute concerned the date from which a judgment for the appellant in the sum of $115,000 should take effect, and whether pre-judgment interest should be included. The application was made under rule 36.16(3) of the Uniform Civil Procedure Rules 2005 (NSW).

The primary legal issue before the court was whether it had the power to vary the appeal judgment to include pre-judgment interest, particularly when such interest had not been sought prior to the application. A related issue was whether the judgment should be backdated to the date of the decision under appeal.

The court reasoned that while rule 36.16(3) permitted variation of judgments, it did not extend to the addition of claims for pre-judgment interest that were not made at the original hearing or on appeal. However, the court found that it had the power under rule 36.4 to make an order that the judgment take effect from an earlier date. Applying this power, the court determined that it was appropriate to backdate the judgment to 10 December 2019, the date of the decision under appeal, thereby effectively granting the appellant the benefit of interest from that date without formally awarding pre-judgment interest.

Consequently, the court ordered that the judgment for the appellant as plaintiff in the sum of $115,000 entered on 15 September 2020 take effect as at 10 December 2019. The appellant's notice of motion seeking other variations was otherwise dismissed, and no order was made as to the costs of that motion.