Cai v Zheng (No 2)

[2009] NSWCA 317

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Powers of appellate court
3. › Restitution
4. › Stay of primary judgment conditional upon part payment
5. › Judgment on appeal reduced below amount of part payment
6. › Whether order for restitution follows as of course
7. › Whether circumstances rendered repayment unjust
1. Practice and Procedure
2. › Judgments and orders
3. › Restitution following successful appeal
4. › Failure to seek restitutionary order in notice of appeal
5. › Whether non-compliance with procedural rules bars relief
6. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 51.19
7. › Civil Procedure Act 2005 (NSW), s 56
1. Practice and Procedure
2. › Court of Appeal
3. › Powers of single judge
4. › Whether single judge may make orders consequential upon appeal determination
5. › Whether variation of orders given on appeal may be dealt with by single judge
6. › Supreme Court Act 1970 (NSW), s 46
1. Practice and Procedure
2. › Interest
3. › Restitutionary interest
4. › Whether appropriate to limit interest on repayment where claim not made until after judgment
5. › Whether stay of repayment pending High Court appeal appropriate

Quick Take

An order for restitution follows as of course from the setting aside of a judgment on appeal, and failure to seek such an order in the notice of appeal as required by UCPR r 51.19 is not a bar to obtaining it, though the prejudice caused by late application may justify limiting interest and deferring repayment. Applications for restitutionary orders that could vary orders made on appeal should be made to the Court as originally constituted, not to a single judge under s 46 of the Supreme Court Act 1970.