BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269

New South Wales Court of Appeal

CITATION : BHP Steel (JLA) Pty Ltd v Khan (No 2) [2001] NSWCA 269 FILE NUMBER(S) : CA 40751/00 HEARING DATE(S) : On written submissions JUDGMENT DATE : 23 August 2001

PARTIES : BHP Steel (JLA) Pty Ltd - Claimant/Appellant Mohammed Khan - Opponent/Respondent JUDGMENT OF : Giles JA; Hodgson JA

LOWER COURT JURISDICTION : District Court LOWER COURT 9434/98 FILE NUMBER(S) : LOWER COURT Herron DCJ JUDICIAL OFFICER :

COUNSEL : D R Russell - Claimant/Appellant M Aldridge SC - Opponent/Respondent SOLICITORS : Sparke Helmore - Claimant/Appellant L J Sharpe & Co, Rockdale - Opponent/Respondent CATCHWORDS : RESTITUTION - money paid under judgment - judgment set aside on appeal - new trial limited to damages - appellant entitled to repayment - entitled even though liability remained and only quantum in issue in the new trial. D Baulkham Hills Shire Council v Pascoe (2000) NSWCA 322; Caldwell v Hill (2000) NSWCA 239; CASES CITED: Krishna v Loustos (No 2) (2001) NSWCA 99; Production Spray Painting and Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. DECISION : (1) Judgment for the appellant for $267,812. (2) Appellant to pay the respondents costs of the application.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40751/00 DC 9434 /98 GILES JA HODGSON JA

Thursday 23 August 2001 BHP STEEL (JLA) PTY LTD v KHAN (No. 2)

Judgment

1 THE COURT: This was a quantum appeal from a judgment of the District Court in a claim for damages for personal injury. In reasons delivered on 4 July 2001 we held that the assessment of the respondent's damages was flawed, and that the judgment should be set aside and there should be a new trial limited to the assessment of damages. 2 On the delivery of reasons the appellant applied for an order that the respondent repay with interest the payment made to him under the District Court judgment. The fact of payment had not earlier been made known. The respondent opposed such an order. Directions were given to enable the application to be decided on written submissions. 3 The District Court judgment was given on 25 August 2000 in the amount of $387,255. On 1 September 2000 the appellant applied to the District Court for a stay of execution. The application was compromised, and consent orders were made providing for a stay of execution on conditions including payment to the respondent of $250,000. That payment was made on 22 September 2000, as to $41,827.30 to Centrelink, as to $25,000 to the Health Insurance Commission, and as to the balance of $183,172.70 to the respondent's solicitors. 4 The appellant's application was for repayment of the $250,000 plus interest. The respondent did not submit that if there were to be repayment, it should exclude the sums paid to Centrelink and the Health Insurance Commission. Nor did the respondent submit that the $250,000 should not carry interest. 5 A successful appellant is entitled to recover all monies paid under the judgment that has been set aside. His entitlement is as of right, not as a matter of discretion. It is sufficient to refer to Production Spray Painting and Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659; TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; Caldwell v Hill (2000) NSWCA 239; Baulkham Hills Shire Council v Pascoe (2000) NSWCA 322; and Krishna v Loustos (No 2) (2001) NSWCA 99. In the first of these cases it was said (at [11]) - "This claimant has been injured by acts of the Court, both the trial court, and the single judge of this Court who refused to order a stay of execution on the judgments under appeal, in that it has been compelled to pay money at a time when it is now known that the money was not legally payable. The opponent, to use other language of Lord Cairns [ Rodger v Comptoir D'Escompte de Paris (1871) 3 LR PC 465; 17 ER 120] (at 475; 125), has 'by mistake and by wrong obtained possession of the money under a judgment which has been reversed' , and remains in possession of the money without any existing right to do so. In our judgment the Court is bound to make orders for restitution to redress this continuing wrong."