New South Wales Court of Appeal CITATION : KRISHNA v LOUSTOS [No 2] [2001] NSWCA 99 FILE NUMBER(S) : CA 40944/98; 40945/98 HEARING DATE(S) : In chambers on the papers JUDGMENT DATE : 11 April 2001 PARTIES : Venkata Bomareddy Krishna Noula Loustos JUDGMENT OF : Spigelman CJ at 1; Mason P at 1; Handley JA at 1 LOWER COURT JURISDICTION : District Court LOWER COURT DC 1261/98; 1260/98 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER : COUNSEL : A J Sullivan QC (Appellant) M J Finnane QC/A S Kostopoulos (Respondent) SOLICITORS : Yeldham & Associates (Appellant) Xenos Jordan (Respondent) CATCHWORDS : APPEAL - successful appeal - restitution Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1991) 27 NSWLR 659 CASES CITED: Haig v Minister Administering the National Parks and Wildlife Act [No 3] (1996) 48 NSWLR 381 TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381 DECISION : Orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40944/98;40945/98 DC 1261/98;1260/98 SPIGELMAN CJ MASON P HANDLEY JA 11 April 2001 KRISHNA v LOUSTOS [No. 2] JUDGMENT 1 THE COURT: On 22 October 1998 Goldring DCJ entered judgments which totalled $390,734.92 in favour of Mrs Loustos (the opponent) against Dr Krishna (the claimant) in proceedings 1260 and 1261 of 1998. The claimant appealed to this Court and on 18 December 1998 he applied to the trial Judge for a stay of proceedings on the judgments pending his appeals. The Judge ordered a stay on condition that the claimant paid $200,000 to the opponent. This payment was made on 21 December 1998. 2 On 9 October 2000 this Court allowed the claimant's appeals, set aside the judgments in favour of the opponent, and entered judgment for the claimant defendant in the actions. The Court was not asked to make, and did not make, any order for the repayment of the $200,000 paid to the opponent under the judgments in the District Court. In fact the Court was not informed that such a payment had been made. 3 This is yet another case where the legal representatives of a successful appellant have failed, at the hearing of the appeal, to seek appropriate relief in respect of interim payments under the judgment challenged in the appeal and have been forced to commence further proceedings for this purpose. The claimant did this by filing a notice of motion on 17 November 2000 seeking repayment of the $200,000 with interest of $32,726.03 to 16 November. 4 The claimant is entitled to restitution as of right following the reversal of the judgments against him. See Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1991) 27 NSWLR 659; Haig v Minister Administering the National Parks and Wildlife Act [No 3] (1996) 90 LGERA 408 and TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381. The opponent therefore will be ordered to repay the sum of $200,000, together with interest thereon at judgment rates of $32,726.03 to 16 November 2000. Judgment will be entered with effect from that date. 5 These proceedings became necessary because the claimant did not ask for complete relief at the hearing of the appeal. The claimant therefore must pay the opponent's costs of this motion. 6 The following formal orders are made: (1) Judgment for the claimant for $232,726.03 with effect from 16 November 2000; (2) Claimant to pay the opponent's costs of the motion dated 17 November 2000. ****** 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.