MLC Pty Ltd & Anor v Daffy (No 2)

[2018] VSCA 10

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Judgments, declarations and orders
3. › Repayment of judgment sum following successful appeal
4. › Jurisdiction to order repayment where not sought at time of appeal
5. › Whether court retains jurisdiction to make repayment order
1. Practice and Procedure
2. › Judgments, declarations and orders
3. › Interest on judgment sum repayable following successful appeal
4. › Rate of interest
5. › Whether successful appellant entitled to interest at penalty rates or restitutionary rates
6. › Supreme Court Act 1986 (Vic), ss 58, 60, 101
1. Restitution
2. › Recovery of money paid under judgment subsequently reversed
3. › Interest as restitutionary remedy
4. › Appropriate rate of restitutionary interest

Quick Take

Where a judgment sum is paid and the judgment is subsequently set aside on appeal, the successful appellant is entitled to restitutionary interest (not penalty interest) on the repaid sum. In a low interest rate environment and absent evidence of an appropriate rate, 2% per annum may be adopted as the restitutionary rate. Practitioners should ensure repayment orders are sought at the time the appeal is allowed, though the court retains jurisdiction to make such orders subsequently.