Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) [2017] NSWCA 154

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright (No 2) [2017] NSWCA 154 Hearing dates: On the papers Decision date: 23 June 2017 Before: Basten JA at [1]; Hoeben JA at [2]; Gleeson JA at [3] Decision: (1) Judgment for the appellant against the second respondent for $94,431.03 with effect from 24 May 2017.

(2) Each party to pay its costs of the motion of 9 March 2017. Catchwords: RESTITUTION – other matters – recovery of money paid under judgment or order – where money paid by appellant pursuant to declaration by primary judge that appellant must indemnify second respondent under Workers Compensation Act 1987 (NSW), s 151Z(1)(d) – where declaration is set aside on appeal – where restitution not sought in notice of appeal or at the hearing – whether appropriate to deny interest in the present case.

PROCEDURE – where appellant seeks a further order for restitution of moneys paid under a declaration which is set aside on appeal – where appellant failed to claim restitution in the notice of appeal or at the hearing of the appeal – where omission to claim restitution was an oversight by the appellant's lawyers – Uniform Civil Procedure Rules 2005 (NSW), r 51.19.

COSTS – restitution and interest on moneys paid under a judgment later set aside – where relief not sought in notice of appeal or at the hearing – appropriate order for costs of later application for restitution – where appellant seeks an indulgence and respondent to motion had no basis to oppose the making of an order for restitution. Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 75A(10) Uniform Civil Procedure Rules 2005 (NSW), rr 36.7(1), 42.1, 51.19, 51.54 Workers Compensation Act 1987 (NSW), s 151Z(1)(d) Cases Cited: Barrak Corporation Pty Ltd v Jaswil Properties Pty Ltd (No 2) [2016] NSWCA 149 Boral Limited v Foley & Bear Pty Ltd t/as J&R Industries (No 2) [2017] NSWCA 108 Cai v Zheng (No 2) [2009] NSWCA 317 Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 Perisher Blue Pty Ltd v Vidakovic (No 2) [2006] NSWCA 326 Production Spray Painting & Panel Beating Pty Ltd v Newnham (No 2) (1992) 27 NSWLR 659 TCN Channel 9 Pty Ltd 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: Procedural and other rulings Parties: Optus Administration Pty Limited (Appellant) Glenn Wright by his tutor James Stuart Wright (First Respondent) IPA Personnel Pty Limited (Second Respondent) Representation: Counsel: GM Watson SC / DF Villa (Appellant) L Morgan (Second Respondent)