Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries (No 2) [2017] NSWCA 108

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries (No 2) [2017] NSWCA 108 Hearing dates: On the papers Decision date: 25 May 2017 Before: McColl JA, Payne JA, Emmett AJA Decision: (1) Pursuant to UCPR r 36.17, in addition to the orders made on 21 December 2016:

(5) Order that the respondent pay to Boral –

(a) $145,219.62, being the amount paid by Boral to the respondent in satisfaction of the orders of the primary judge;

(b) such payment to bear interest at the rate prescribed from time to time in r 36.7 of the UCPR, calculated from 1 February 2017 until the date of repayment;

(c) such payment to be made within 7 days of the date of this judgment.

(2) Each party pay their own costs of Boral's motion filed on 1 February 2017. Catchwords: APPEAL – RESTITUTION ‑ where appeal successful – notice of appeal did not seek restitution - application for order of restitution – slip rule - whether appropriate to order interest payable on the repayment amount Legislation Cited: Civil Procedure Act 2005 (NSW) s 101 Supreme Court Act 1970 (NSW) s 75A Uniform Civil Procedure Rules 2005 (NSW) rr 7.29, 36.7, 36.17, 42.1, 51.19 and 51.54 Cases Cited: Ambulance Service of NSW v Worley (No 2) (2006) 67 NSWLR 719; [2006] NSWCA 236 Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (No 2) [2016] NSWCA 149 Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries [2016] NSWCA 373 Cai v Zhang (No 2) [2009] NSWCA 317 Perisher Blue Pty Ltd v Vidakovic [No 2] [2006] NSWCA 326 Production Spray Painting and Panel Beating Pty Ltd v Newnham [No 2] (1992) 27 NSWLR 659 Storey & Keers Pty Ltd v Johnstone (1987) 9 NSWLR 446 TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381; [1999] NSWCA 104 Woolworths Limited v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 Category: Costs Parties: Boral Limited (Appellant) Foley & Bear Pty Ltd trading as J&R Industries (Respondent) Representation: Counsel: M Condon SC (Appellant)