Woolworths Limited v Strong (No 2) [2011] NSWCA 72

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woolworths Limited v Strong (No 2) [2011] NSWCA 72 Hearing dates: On the papers Decision date: 04 May 2011 Before: Campbell JA at [1], Handley AJA at [76], Harrison J at [77] Decision: (1) Judgment for the Appellant against the First Respondent for $285,768.66, plus interest at the rates prescribed for the purpose of s 101 of the Civil Procedure Act 2005 from and including 22 February 2011 to the date of payment. (2) Judgment for the Appellant against the First Respondent in the further sum of $36,789.73, that sum not to bear interest under s 101 of the Civil Procedure Act 2005 . (3) The order made on 2 November 2010 that the First Respondent pay the Appellant's costs of the appeal not extend to the costs of the Notice of Motion filed 16 November 2010. (4) Stay execution of orders (1) and (2) above for 28 days from today's date. Catchwords: PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - orders for restitution - payment of interest - successful appellant entitled as of right to restitution of sum paid with interest - PRACTICE AND PROCEDURE - Court of Appeal - where judgment that has already been paid in whole or part is reversed on appeal - requirement of Notice of Appeal to state claim for restitution, sum concerning which restitution is sought and time period over which interest is sought - PRACTICE AND PROCEDURE - judgments and orders - stay of execution pending appeal - where risk that plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed - considerations affecting whether to seek payment of all or part of a judgment when appeal lodged Legislation Cited: Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules Cases Cited: Ambulance Service of New South Wales v Worley (No. 2) [2006] NSWCA 236; 67 NSWLR 719 Cai v Zheng (No 2) [2009] NSWCA 317 Commonwealth v McCormack (1984) 155 CLR 273 Haig v Minister Administering the National Parks and Wildlife Act [No 3] (1996) 90 LGERA 408 Heydon v NRMA (No 2) [2001] NSWCA 445; 53 NSWLR 600 Krishna v Loustos (No 2) [2001] NSWCA 99 Nationwide News Pty Ltd v Naidu (No 2) [2008] NSWCA 71 Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1991) 27 NSWLR 659 TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381 Woolworths Limited v Strong [2010] NSWCA 282 Texts Cited: K Mason, J W Carter & G J Tolhurst, Restitution Law in Australia 2nd ed (2008) Chapter 7 Category: Consequential orders Parties: Woolworths Limited (Appellant) Kathryn Strong (First Respondent) CPT Manager Limited (Second Respondent) Representation: Counsel: J E Maconachie QC (Appellant) M J Cranitch SC; T J Willis (First Respondent) S J Walsh (Second Respondent) Solicitors: Bartier Perry (Appellant) Leitch Hasson Dent (First Respondent) Thompson Cooper Lawyers Pty Ltd (Second Respondent) File Number(s): 2009/298590 Decision under appeal Date of Decision: 2009-08-28 00:00:00 Before: Robison DCJ File Number(s): 5795/06