Where a judgment is set aside on appeal and a new trial ordered limited to damages only, the appellant is entitled as of right to restitution of all monies paid under the set-aside judgment, notwithstanding that the respondent's entitlement to damages (liability) remains established. The question whether restitution might be declined where it is clear the respondent will recover at least the amount paid is left open. Appellants' legal representatives who fail to disclose payments and seek restitution at the appeal hearing risk personal costs orders in future cases.
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