TCN CHANNEL 9 v ANTONIADIS [No 2] [1999] NSWCA 104

Reported Decision : 48 NSWLR 381

New South Wales Court of Appeal CITATION : TCN CHANNEL 9 v ANTONIADIS [No 2] [1999] NSWCA 104 FILE NUMBER(S) : CA 40240/97 HEARING DATE(S) : 12 March 1999 26 March 1999 JUDGMENT DATE : 22 April 1999

PARTIES : TCN Channel 9 v Lorna Lassanda Antoniadis [No 2] JUDGMENT OF : Handley JA at 1; Beazley JA at 1; Stein JA at 1

LOWER COURT JURISDICTION : Court of Appeal LOWER COURT FILE NUMBER(S) : CLD 11047/90; 14914/91 LOWER COURT JUDICIAL OFFICER : Handley Beazley Stein JJA

COUNSEL : A J Meagher SC (Appellant) A B Shand QC/M B Duncan (Respondent) SOLICITORS : Gilbert & Tobin (Appellant) Bush Burke & Company (Respondent) CATCHWORDS : RESTITUTION - repayment of judgment debts and costs - Supreme Court Rules Pt 51 AA r 18 - whether power to make restitutionary orders should be exercised when new trial pending ACTS CITED : Supreme Court Rules Pt 51AA r 18 Bankruptcy Act 1966 s 40(1)(g) TCN Channel 9 v Antoniadis (1998) 44 NSWLR 682 Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659, 661 CASES CITED: Rodger v Comptoir d'Escompte de Paris (1871) LR 3 PC 465 Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 Finance Facilities v FCT (1971) 127 CLR 106 Hood Barrs v Crossman [1897] AC 172 DECISION : Orders made

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40240/97 HANDLEY JA BEAZLEY JA STEIN JA

22 April 1999 TCN CHANNEL 9 PTY LTD v LORNA LASSANDA ANTONIADIS [NO 2]

RESTITUTION - repayment of judgment debts and costs - Supreme Court Rules - Pt 51AA r 18 - whether power to make restitutionary orders should be exercised when new trial pending The claimant sought orders for the repayment of judgment debts and costs paid following the trial of defamation actions in the Common Law Division. The judgments were later reversed and a new trial was ordered. The opponent relied on SCR Pt 51AA r 18 submitting that the discretion should not be exercised because a new trial was pending, and also sought a stay of execution on any judgment entered in favour of the claimant. HELD: (1) The claimant was entitled to judgment for the damages and costs paid under the judgments which had been set aside. Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659. (2) There was no discretion under SCR Pt 51 AA r 18 to refuse to order restitution. The rule should be construed as conferring a power to order restitution and not a discretion to refuse it. Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 and Finance Facilities Pty Ltd v FCT (1971) 127 CLR 106 applied. (3) The Court is bound by its duty to redress any wrong done to a suitor in the Court and must make orders for restitution. Rodger v Comptoir d'Escompte de Paris (1871) LR 3 PC 465 applied. (4) The claimant's failure to seek orders for repayment at the hearing of the appeal made these further proceedings necessary. Consequently the claimant must pay the costs of the further proceedings. Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659. (5) There should be no stay of execution. ORDERS (1) Judgment for the claimant for $664,156.63 with effect from 12 March 1999. (2) Claimant to pay opponent's costs of the motions of 15 December 1998 and 12 March 1999. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40240/97 HANDLEY JA BEAZLEY JA STEIN JA