Boral Limited v Foley & Bear Pty Ltd trading as J&R Industries (No 2)

[2017] NSWCA 108

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › Restitution where appeal successful
3. › Notice of appeal did not seek restitution
4. › Application for order of restitution
5. › Slip rule
6. › Whether restitution may be ordered after appeal determined where not sought in notice of appeal
7. › Uniform Civil Procedure Rules 2005 (NSW), rr 36.17, 51.19
1. Appeal
2. › Restitution where appeal successful
3. › Interest on restitution amount
4. › Whether appropriate to order interest payable on repayment amount
5. › Date from which interest runs where claim for interest not made in original appeal
6. › Civil Procedure Act 2005 (NSW), s 101
7. › Uniform Civil Procedure Rules 2005 (NSW), r 36.7
1. Practice and Procedure
2. › Slip rule
3. › Accidental omission by lawyers
4. › Failure to include restitution claim in notice of appeal
5. › Whether omission was accidental slip within UCPR r 36.17
6. › No time limit under r 36.17

Quick Take

Where a successful appellant has failed to seek restitution of moneys paid under a judgment set aside on appeal, the slip rule in UCPR r 36.17 may be invoked to obtain a restitution order after the appeal has been determined, provided the omission was accidental. However, interest on the restitution amount may be limited to run from the date of the application rather than the date of the appellate judgment where the claim for interest was also omitted and there is no evidence the omission of the interest claim was accidental.