WOOLWORTHS LTD v KELLY [NO2] [1991] NSWCA 287

WOOLWORTHS LTD v KELLY [No 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MAHONEY JJA 11 April 1991, 29 August 1991

[1991] NSWCA 287

PRACTICE — orders — dispute as to — claim for refund of moneys overpaid — formulation of orders — whether entitled to interest under s94 Supreme Court Act 1970 on repayment proper order for costs — held: Orders made to give effect to the judgment of the Court in Woolworths Limited v Kelly, (1991) 22 NSWLR 189. The Commonwealth of Australia vy McCormack (1984) 15 5 CLR 273; Government Insurance Office of New South Wales and Ors v Healey [No 2], Court of Appeal, unreported, 15 March 1991 considered. Supreme Court Act 1970, s94.

Kirby P and Samuels JA On 15 March 1991 the Court published its reasons to dispose of the appeal by Woolworths Limited (the appellant) against orders by Cole J in favour of Sir Theo Kelly (the respondent). See Woolworths Ltd v Kelly (1991) 21 NSWLR 189.

Decision of the Court and differences as to orders. There was a difference amongst the members of the Court concerning the orders which should be made.

Kirby P was in favour of allowing the appeal, setting aside the orders and declarations of Cole J and entering judgment in favour of Woolworths Limited on Sir Theo Kelly's claim. He also favoured various other orders. Samuels JA favoured allowing the appeal in part and dismissing it in part. He proposed that counsel should be directed to bring in short minutes of the orders necessary to give effect to his reasons. Mahoney JA was of the opinion that the appeal should be dismissed with costs.

To resolve the differences within the Court and to secure an order of the majority, Kirby P withdrew the orders which he would otherwise have proposed and agreed in the orders proposed by Samuels JA. Those orders therefore became the orders of the Court.