Hume v Walton

Submissions 12 The claimant submits that following the reversal of the judgment he is entitled to restitution of the moneys paid to the opponent under the judgment: TCN Channel Nine Pty Limited v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381. 13 The opponent does not dispute that entitlement but submits that the Court has a discretion to mould any order for restitution on discretionary grounds to provide for (inter alia) the deferral of the date of repayment of moneys ordered to be repaid: see Antoniadis at 383. She seeks to distinguish Antoniadis, where such a stay was refused (at 384 - 385) on the basis that in that case the trial judge and another had refused to stay execution of the judgments pending appeal whereas, in this case, the stay was by agreement. She also points out that, although there was no stay in relation to the costs ordered by the primary judge, the claimant has not paid her costs. 14 The opponent has adduced evidence that, after deductions for her legal costs, the repayments to Centrelink and the HIC, she received a net amount of $136,413.87 out of the amount of $230,283.35 paid over by the claimant as a result of the agreed stay. She deposes in essence, that she had spent that amount in meeting existing obligations, both legal and moral, as well as household expenses. 15 Mr Churches, the opponent's solicitor, deposes that the damages rehearing which is to take place as a result of this Court's first judgment is likely to take place in February or March 2006. 16 In his written submissions he acknowledges that the opponent is unable to meet immediately, or possibly in the long term, any order for repayment but submits that having regard to the imminent rehearing of the matter, this Court should exercise its discretion to order that the date for repayment of the moneys paid over be deferred either until the rehearing of the opponent's claim or until a specified date in the early part of 2006. He did not nominate any date which would be appropriate in the latter respect.

Consideration 17 As the opponent acknowledges it is uncontroversial that the claimant is entitled to restitution of the moneys paid under the judgment set aside: Production Spray Painting and Panel Beating Pty Limited & Ors v Newnham & Ors [No 2]; TCN Channel Nine Pty Limited v Antoniadis [No 2]. 18 In Antoniadis the Court observed (at [8]) that "orders for restitution may be moulded on discretionary grounds to provide for matters such as the date for repayment or delivery of possession, and perhaps for a stay of execution on appropriate security being given". The Court also observed (at [14]) that the opponent in that case had sought a stay "so that [she] can retain the funds while she attempts to acquire a new right to them at the fourth trial". The Court concluded that there was "no support for such an approach in the decisions, and in our judgment the Court must give effect to the claimant's right to be repaid its moneys". 19 Antoniadis arose out of the third trial of the opponent's defamation actions in which the jury had found verdicts in her favour totalling $375,000. The trial judge had refused to stay execution of the judgments pending an appeal to this Court and a further application for stay of execution made to a judge of this Court had been dismissed. The claimant's appeal against the judgments had succeeded and this Court had ordered that there be a new trial on all issues: TCN Channel Nine v Antoniadis (1998) 44 NSWLR 682. In that case, on appeal, the Court had not been informed that the judgment debt as well as moneys on account of costs had already been paid by the claimant nor was it was asked at the hearing of the appeal to order the opponent to repay those moneys. The Court commented (at [3]) that: "This question, which is of some importance to the client, is so frequently overlooked by legal advisors acting for appellants that an embarrassing body of case law has accumulated which establishes that appropriate relief can be granted after the appeal has been determined: see Production Spray Paining and Panel Beating Pty Limited v Newnham [No 2] … at 661."

The same observation can be made in this case where the application for a restitution order was made almost six months after the judgment was delivered and the final materials in relation to the application not provided to the Court until 6 December 2005. 20 In our view this is a case in which it is appropriate notwithstanding the claimant's entitlement to restitution, that enforcement of the restitution order be stayed pending disposition of the new trial ordered whether by settlement or judgment. Unlike Antoniadis, the new trial is limited to damages. It might be inferred that the claimant accepted the opponent would, in due course, recover a sum in the order of that it agreed to pay pending appeal. In addition the rehearing of the remitted action will take place very soon. If a stay is not granted, it is probable that the opponent will be deprived of the opportunity to pursue that entitlement.

Interest 21 As to interest, the claimant conceded, in effect, in its written submissions that the question of the principal on which interest should be calculated was debatable having regard to those sums which were paid to Centrelink and the HIC. It proposed interest be calculated either on all the moneys paid over on 18 February 2004 or only on the net sum i.e. after deduction of the amounts paid to Centrelink and the HIC. The opponent submits that the appropriate amount for interest is the lower figure on the basis that the moneys paid to Centrelink and the HIC were paid pursuant to a statutory obligation to do so and that she had not enjoyed the use of those funds since they were paid on or about 18 February 2004. We accept the opponent's submissions. 22 Accordingly while there will be a judgment for the claimant in the amount of $226,938.95, interest should only be paid on $205,028.35, being that amount net of the payment to Centrelink. 23 The claimant does not seek to recover the moneys paid to the HIC, whatever their amount.

Costs 24 The opponent submits that the claimant should pay her costs of the Notice of Motion. She draws to the Court's attention the fact that the claimant had not sought an order in respect of the interim payment made under the judgment at the hearing of the appeal. In Production Spray Painting and Antoniadis, in like circumstances, the claimant was ordered to pay the opponent's costs of the motion and, in our view, that is the appropriate order, in this case.

Orders 25 The orders as framed in the claimant's Notice of Motion seek an order that Centrelink be ordered to repay the sum of $21,910.60. In our view that is inappropriate order. Centrelink is not a party to these proceedings. The moneys paid to Centrelink were paid pursuant to ss 1182 - 1184E of the Social Security Act 1991 (Cth). Although we have not examined those provisions closely, payment under them to the Commonwealth depended upon the claimant, or his insurer, becoming liable to pay compensation to the opponent. It would undoubtedly be open to the claimant and the opponent to draw Centrelink's attention to the Court's order that the opponent repay the moneys paid over to it and to seek recovery of those funds. Having regard, however, to the fact that liability at the trial was admitted, the parties may also think, as a matter of common sense, that it would be better to leave the Centrelink moneys where they are. 26 We make the following orders:

(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.

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