GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v HEALEY [NO 2] [1991] NSWCA 103

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES vy HEALEY [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 25 February 1991, 15 March 1991 [1991] NSWCA 103

JUDGMENT and ORDERS — judgments entered in personal injury claims — appeal — total sum paid as condition of stay of execution of judgments — appeal court reduces judgments substituted judgment less than sum paid as condition of stay — whether successful appellant entitled to recover amount of over-payment — whether entitled to have an order for interest on overpayment — whether entitlement to interest should be dated from the order or backdated to original payment — held: (1) Although the amount of over-payment might be recovered in a claim for moneys had and received, the Court of Appeal had power to order the repayment as incidental to the orders made in the appeal. Lee v Mallam (1911) 27 WN (NSW) 203 considered; (2) Having regard to the undesirability of a multiplicity of litigation and s63 of the Supreme Court Act 1970, the Court of Appeal should so order; (3) Such order might be made after judgment by a single Judge of Appeal exercising the powers of the Court under s46(2)(b) Supreme Court Act 1970; (4) The Court also had power to order the payment-of interest which could be ordered to be paid from the date of the overpayment; (5) In the circumstances, orders should be made for (a) the payment of the amount of the over-payment; and (b) interest back-dated to the date on which the over-payment was made.

INTEREST — date of order — whether order should be made retrospective — recoupment of amount of judgment overpaid as a term of stay of execution on a judgment subsequently reduced — held: Interest should be ordered and backdated to the date of the overpayment. Keogh v Dalgety and Co Limited [1917] VLR 309; Borthwick v Eldersley Steamship Company, Limited [1950] 2 KB 516 considered. supreme Court Act 1970, ss46,63,95. Supreme Court Rules, Pt40, Rule 3.