Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Downer EDI Limited v Gillies (No 2) [2012] NSWCA 384 Hearing dates: On the papers Decision date: 30 November 2012 Before: Allsop P at [1] Macfarlan JA at [1] Meagher JA at [1] Decision: The Court orders that within 7 days the parties provide to the chambers of the President short minutes of orders to be made in accordance with these reasons. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONSEQUENTIAL ORDERS -- resolution of orders and costs - no question of principle Legislation Cited: Civil Procedure Act 2005 (NSW), s 100, s 101 Taxation Administration Act 1953 (Cth) Cases Cited: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Category: Consequential orders Parties: Downer EDI Ltd (Appellant) Stephen John Gillies (Respondent) Representation: J C Giles (Appellant) D L Williams SC, R C Beasley SC (Respondent) Corrs Chambers Westgarth (Appellant) DibbsBarker (Respondent) File Number(s): 2007/265271 Decision under appeal Jurisdiction: 9111 Citation: [2011] NSWSC 1055 Date of Decision: 2011-09-09 00:00:00 Before: Rothman J File Number(s): 2007/265271 Judgment 1THE COURT: Reasons of the Court were published on 18 October 2012: Downer EDI Limited v Gillies [2012] NSWCA 333. The parties are unable to agree on the orders that should be made. The disagreement concerns two issues regarding interest and the question of costs. Familiarity with the main judgment is assumed in these reasons. Interest on the payment in lieu of notice 2On 9 August 2007, Downer made a payment to Mr Gillies under cl 4.1(b) for three months' salary in lieu of notice. The gross sum was $396,249.99, of which $222,295.14 was paid to Mr Gillies, the balance to the Australian Taxation Office ("ATO") as the tax payable by Mr Gillies, under Downer's obligations to deduct and remit employee tax: Taxation Administration Act 1953 (Cth). To the extent that money has been remitted to the ATO under a mistake it will be recoverable in an action in restitution. As between Downer and Mr Gillies, Mr Gillies should restore with interest that which he received, being the net amount. The form of the judgment and interest 3Mr Gillies seeks a judgment calculated by reference to the judgment that he should have received on 2 November 2011. The elements of that are substantially agreed. One residual dispute is judgment interest. Mr Gillies wants a sum calculated as at 2 November 2011 and prejudgment interest to 18 October 2012. That is contrary to s 100(3)(a) of the Civil Procedure Act 2005 (NSW). However, if a judgment is substituted for that ordered by the Court below to take effect from the day of the orders of the Court below, the Civil Procedure Act 2005, s 101, provides for the running of interest from that date: s 101(1) and s 101(2)(a). The operation of s 101(3) is to be noted - no interest is to run if the judgment sum is paid within 28 days. Here, however, given the issues litigated, there is little risk that Downer would have paid within 28 days. Therefore, the form of the orders should be a judgment in lieu of that made by the primary judge to take effect as at 2 November 2011. Costs 4It is true that the parties have had mixed success. Critical to understand, however, is that the trial ranged over issues wider than argued on appeal, and, most importantly, included a fundamental attack on the subjective honesty of Mr Gillies. That attack failed and was not renewed on appeal. In these circumstances, taking into account the approach in James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [32]-[36], Mr Gillies should have his costs at first instance not discounted for issues he lost. 5As to the costs of the appeal, both sides had victories. The issues upon which Downer was successful took up slightly more time and, in all likelihood, more preparation than did those that it lost. In these circumstances, it would not be fair to Downer to make each side pay his and its own costs. Rather, the suggestion by Mr Gillies is fair: Mr Gillies pay 20 percent of Downer's costs on appeal. That is a broadly just resolution of the costs issues. 6As we apprehend the submissions of the parties, the above deals with the only disputes outstanding. The parties should within seven days bring in short minutes of order framed as follows: 1. Appeal allowed in part. 2. Set aside the orders made by the Supreme Court on 2 November 2011 and in lieu thereof order: (a) judgment for the plaintiff in the sum of $ [insert]; (b) the defendant pay the plaintiff's costs. 3. The judgment referred to in order 2 above take effect on 2 November 2011. 4. As soon as reasonably practicable and in any event within 28 days of the date of this order, the respondent deliver up to the appellant the BMW 760Li vehicle the subject of the proceedings. 5. The respondent pay 20 per cent of the appellant's costs of the appeal. ********** 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. Decision last updated: 03 December 2012