Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Hearing dates: On the papers Decision date: 09 December 2014 Before: Macfarlan JA at [1]; Meagher JA at [33]; Barrett JA at [34] Decision: (1) Appeal allowed in part, in relation to the Channar area, but dismissed in relation to Eastern Range. (2) Orders 1 to 4 and 7 of the Court below be set aside and in lieu thereof: (a) Judgment for the first respondent against the appellant in the sum of $89,397,091.73, comprising: (i) $69,284,921.27; and (ii) $20,112,170.46 in interest. (b) Judgment for the second respondent against the appellant in the sum of $89,397,091.73, comprising: (i) $69,284,921.27; and (ii) $20,112,170.46 in interest. (c) The first respondent's claim against the appellant in respect of the Channar area is dismissed. (d) The second respondent's cross-claim against the appellant in respect of the Channar area is dismissed. (3) Note that the appellant was entitled to restitutionary payments from each of the respondents of $41,419,165.10 and that the respondents have made those payments. (4) Judgment against each of the respondents in the amount of $3,365,732.70 representing the appellant's entitlement to interest on those restitutionary payments. (5) Note that the Court does not make any order as to the costs of the appeal. (6) Order the appellant to pay 50% of the first instance costs of the first respondent and the second respondent. (7) Note that the cross-appeals filed by the first respondent and second respondent are withdrawn and that the Court does not make any order as to the costs of them. [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: INTEREST - judgments - payments made to plaintiffs under first instance judgment that was reversed on appeal - amounts repaid by plaintiffs after appeal decision - claims by defendant for interest on judgment amounts from the time when paid to the plaintiffs until the time repaid - whether interest should be awarded at pre-judgment or post-judgment rate COSTS - costs at first instance - plaintiffs ordinarily entitled to order for payment of the whole of their costs notwithstanding that they might not have recovered the whole of the amount they claimed - defendant/appellant succeeded in defeating a distinct part of claim against it - defendant/appellant to pay 50 per cent of plaintiffs'/respondents' costs at first instance Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 100, 101 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 6.12, 36.7, 42.1, 51.19, 51.54 Cases Cited: Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Bunnings Group Ltd v CHEP Australia Ltd (No 2) [2011] NSWCA 384 Commonwealth of Australia v McCormack [1984] HCA 57; 155 CLR 273 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600 Maestrale v Aspite (No 2) [2014] NSWCA 302 Management 3 Group Pty Ltd (in liq) v Lenny's Commercial Kitchens Pty Ltd (No 2) [2012] FCAFC 92; 203 FCR 283 Woolworths Ltd v Strong (No 2) [2011] NSWCA 72; 80 NSWLR 445 Category: Consequential orders Parties: Mount Bruce Mining Pty Ltd (Appellant) Wright Prospecting Pty Ltd (First Respondent) Hamersley Iron Pty Ltd (First Cross-Respondent) Hancock Prospecting Pty Ltd (Second Respondent) Representation: Counsel: N J Young QC/M J Darke/Q Rares (Appellant/First Cross-Respondent) A J Myers QC/K A Stern SC/K H Barrett/R J Hardcastle (First Respondent) N C Hutley SC/J C Giles (Second Respondent) Solicitors: Allens (Appellant/First Cross-Respondent) Clayton Utz (First Respondent) Horton Rhodes (Second Respondent) File Number(s): CA 2013/173153 Decision under appeal Jurisdiction: 9111 Citation: Wright Prospecting Pty Ltd v Hamersley Iron Pty Limited [2013] NSWSC 536 Wright Prospecting Pty Ltd v Hamersley Iron Pty Limited (No 2) [2013] NSWSC 709 Before: Hammerschlag J File Number(s): SC 2009/323345