Campbell JA at [1], Handley AJA at [76], Harrison J at [77]
Decision:
(1) Judgment for the Appellant against the First Respondent for $285,768.66, plus interest at the rates prescribed for the purpose of s 101 of the Civil Procedure Act2005 from and including 22 February 2011 to the date of payment. (2) Judgment for the Appellant against the First Respondent in the further sum of $36,789.73, that sum not to bear interest under s 101 of the Civil Procedure Act2005 . (3) The order made on 2 November 2010 that the First Respondent pay the Appellant's costs of the appeal not extend to the costs of the Notice of Motion filed 16 November 2010. (4) Stay execution of orders (1) and (2) above for 28 days from today's date.
Catchwords:
PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - orders for restitution - payment of interest - successful appellant entitled as of right to restitution of sum paid with interest - PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - requirement of Notice of Appeal to state claim for restitution, sum concerning which restitution is sought and time period over which interest is sought - PRACTICE AND PROCEDURE - judgments and orders - stay of execution pending appeal - where risk that plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed - considerations affecting whether to seek payment of all or part of a judgment when appeal lodged
Counsel: J E Maconachie QC (Appellant) M J Cranitch SC; T J Willis (First Respondent) S J Walsh (Second…
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.
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Details
AGLC
Woolworths Ltd v Strong (No 2) [2011] NSWCA 72
Case
[2011] NSWCA 72
Decision Date
CaseChat Overview and Summary
Woolworths Ltd (Appellant) appealed against a judgment of the Supreme Court of New South Wales in favour of Mr. Strong (First Respondent). The dispute concerned the repayment of a sum of money paid by Mr. Strong to Woolworths Ltd pursuant to an earlier judgment, which Woolworths Ltd sought to reverse on appeal. The Court of Appeal was required to determine the entitlement to restitution and interest following the successful appeal and the requirements for seeking such relief.
The Court of Appeal considered the principles governing restitution when a judgment is reversed on appeal. It affirmed that a successful appellant is entitled as of right to restitution of any sum paid under the reversed judgment, together with interest. However, the Court also highlighted procedural requirements, stating that a Notice of Appeal should clearly articulate the claim for restitution, specify the sum for which restitution is sought, and indicate the period over which interest is claimed. The Court also addressed the considerations relevant to whether a party should seek payment of a judgment when an appeal has been lodged, particularly where there is a risk of the plaintiff being unable to repay the money without difficulty or delay.
The Court of Appeal ordered judgment for the Appellant against the First Respondent for $285,768.66, plus interest at the prescribed rates from 22 February 2011 to the date of payment. A further judgment was entered for the Appellant against the First Respondent in the sum of $36,789.73, which was not to bear interest under s 101 of the Civil Procedure Act 2005. The costs order relating to the appeal was modified to exclude the costs of a specific Notice of Motion. Finally, execution of the restitutionary orders was stayed for 28 days.
Orders
Orders of the court
(1) Judgment for the Appellant against the First Respondent for $285,768.66, plus interest at the rates prescribed for the purpose of s 101 of the Civil Procedure Act 2005 from and including 22 February 2011 to the date of payment.
(2) Judgment for the Appellant against the First Respondent in the further sum of $36,789.73, that sum not to bear interest under s 101 of the Civil Procedure Act 2005 .
(3) The order made on 2 November 2010 that the First Respondent pay the Appellant's costs of the appeal not extend to the costs of the Notice of Motion filed 16 November 2010.
(4) Stay execution of orders (1) and (2) above for 28 days from today's date.