ITEK GRAPHIX PTY LTD v ELLIOTT [NO 2] [2002] NSWCA 274

ITEK GRAPHIX PTY LTD v ELLIOTT [NO 2] [2002] NSWCA 274

Because the verdict and judgment in favour of Ms Elliott had been set aside and judgment entered for Itek, the Court had power under Pt 51 r26 to order restitution of the $100,000 paid pursuant to the District Court stay. A temporary stay should not be granted because it would allow the unsuccessful plaintiff to retain part of a verdict to which the Court had held she was not entitled. Ms Elliott was nevertheless entitled to the costs of the application because Itek could have sought the restitution orders during the appeal.

Jurisdiction
Australia
Judgment Date
19 August 2002
Procedural Posture
Notice of Motion to Re Open Appeal and Seek Restitution Orders After Appeal Allowed / In Chambers, Court of Appeal
Outcome
Restitution and interest ordered; temporary stay refused; respondent awarded costs of the application.
Legal Topics
['re Opening Appeal' 'restitution After Judgment Set Aside' 'temporary Stay Pending Special Leave Application' 'costs']
['practice and Procedure' 'civil Procedure' 'appeals'] ['re Opening Appeal' 'restitution After Judgment Set Aside' 'temporary Stay Pending Special Leave Application' 'costs']

Case Brief

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Procedural Posture

Notice of Motion to Re Open Appeal and Seek Restitution Orders After Appeal Allowed / In Chambers, Court of Appeal

Legal Issues

  1. 1 ['Whether the appeal should be re-opened to make restitution orders requiring the respondent to repay $100,000 paid pursuant to a District Court stay order.' 'Whether the respondent should pay interest on the $100,000 calculated by reference to Schedule J of the Supreme Court Rules.' "Whether the Court should grant a temporary stay of its restitution orders pending the hearing and determination of the respondent's application for special leave to appeal to the High Court." 'Who should bear the costs of the application.']

Ratio Decidendi

Because the verdict and judgment in favour of Ms Elliott had been set aside and judgment entered for Itek, the Court had power under Pt 51 r26 to order restitution of the $100,000 paid pursuant to the District Court stay. A temporary stay should not be granted because it would allow the unsuccessful plaintiff to retain part of a verdict to which the Court had held she was not entitled. Ms Elliott was nevertheless entitled to the costs of the application because Itek could have sought the restitution orders during the appeal.

Court Disposition

Restitution and interest ordered; temporary stay refused; respondent awarded costs of the application.

Orders

  • ['The respondent to repay the appellant the sum of one hundred thousand dollars ($100,000) paid by the appellant pursuant to the stay ordered by Graham DCJ on 31 January 2001.' 'The respondent to pay the appellant interest on the said sum calculated by reference to Schedule J of the Supreme Court Rules from 23 March...