CAI v ZHENG (NO 2) [2009] NSWCA 317

New South Wales Court of Appeal

CITATION: CAI v ZHENG (NO 2) [2009] NSWCA 317

HEARING DATE(S): On the papers

JUDGMENT DATE: 6 October 2009

JUDGMENT OF: Giles JA at 1; Basten JA at 6; Hoeben J at 41

1. In addition to the orders made on 25 February 2009:

(6) Order that the respondent pay to the appellant – DECISION: (i) the amount by which the payment of $70,000 made by the appellant as a condition of the stay of the judgment below exceeded the amount of the judgment obtained in this Court, namely $52,552.09; (ii) such payment to bear interest at the rate prescribed from time to time in Schedule 5 of the Uniform Civil Procedure Rules, calculated from 28 February 2009 until the date of repayment; (iii) such repayment to be made within seven days of the date on which the High Court delivers judgment in the matter presently pending in that Court, unless the judgment results in an award of damages in favour of the respondent in excess of $70,000.

2. Order that the appellant pay the respondent's costs of the motion.

CATCHWORDS: APPEAL – powers of court – restitution – stay of primary judgment conditional upon part payment – judgment on appeal reduced to amount less than part payment – whether circumstances rendered repayment unjust - JUDGMENT – proceedings disposed of on appeal – application for order of restitution – whether appropriate for single judge to deal with application where variation of orders given on appeal sought – Supreme Court Act 1970 (NSW), s 46 - PROCEDURE – application for additional orders – orders appropriately sought in appeal – prejudice suffered by respondent – whether appropriate to limit interest on repayment

Civil Procedure Act 2005 (NSW), s 56 LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 46 Supreme Court Rules, Pt 51, r 26 Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 36.17, 51.19, 51.54