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." 6 The respondent submitted that the present case was outside this entitlement because the new trial was limited to an assessment of damages. He submitted that he had a present and unchallengeable right to damages, with only the amount to be ascertained. 7 On the reasoning in the cases to which I have referred, this does not matter. Until an amount is ascertained, the respondent has no existing right to retain the $250,000. Depending on the amount ascertained, he may never have a right to the full $250,000, but that is beside the point. He does not now have a right to any of the $250,000. 8 Nor does authority support the distinction. In Caldwell v Hill the orders left the entitlement to damages untouched but required a new trial as to damages. It was held that there should be restitution with interest of the monies paid under the compulsion of the judgment which was set aside. Mason P, with whom the other members of the Court agreed, said (at [56]) - "I do not think that TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 can be distinguished merely because the new trial there ordered extended to liability as well as damages. If this were a case in which it was clear that the appellants would recover at least the sum paid to them under the judgment to be set aside it might be in order to decline or defer restitution, but damages are at large at the present stage of this tortured litigation." 9 So also in the present case damages are at large, and it can not be said that the respondent will recover at least $250,000. We prefer to leave for another day whether and how, if that could be said, the reasoning in the cases to which we have referred can be overcome. 10 In our opinion, therefore, there should be judgment for the appellant for $250,000 and interest. The claim was to interest in the fixed amount of $17,812, which is something less than interest at judgment rates on $250,000 from 22 September 2000. 11 The respondent's written submissions included that, if there were an order for repayment, there should be a stay of execution, pending the new trial. No evidence was provided to support this, nor any argument beyond the bald statement. Rather than take this up as an application and dismiss it which could have unduly adverse consequences for the respondent, we decline to entertain the apparent application. 12 The appellant accepted that it should pay the costs of its application. It should do so because it failed to make known, at the hearing of the appeal, the fact of payment made to respondent, and to make an application for repayment in the event of success in the appeal (see TCN Channel 9 Pty Ltd v Antoniadis (No 2) at [19] and Krishna v Loustos (No 2) at [5]). The separate application was therefore made necessary by the appellant's default in this respect. The prevalence of default of this kind has been noted in a number of the cases. In future cases, it may be necessary to consider orders whereby an appellant's legal representatives personally pay and bear the relevant costs. Orders 1. Judgment for the appellant for $267,812. 2. Appellant pay the respondent's costs of the application. ______________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.