WOOLWORTHS LTD v KELLY [NO2] [1991] NSWCA 287

WOOLWORTHS LTD v KELLY [NO2] [1991] NSWCA 287

On appeal, Woolworths Limited is entitled to have the orders and declarations of the primary judge set aside. The respondent, Sir Theo Kelly, must repay only the net sum he actually received and give assistance for recovery of PAYE to the appellant, but is not required personally to reimburse PAYE amounts absent evidence they were received by him, or their quantum. Interest is payable at the rate under s94 Supreme Court Act 1970. Costs are to be shared equally reflecting partial success by both parties.

Parties
Appellant: Woolworths Limited; Respondent: Sir Theo Kelly
Jurisdiction
Australia
Judgment Date
29 August 1991
Procedural Posture
Appeal / Determination of Orders Following Appeal Judgment
Outcome
Appeal allowed in part; orders and declarations set aside; orders outlined for repayment, offset, interest, and costs.
Legal Topics
Formulation of Orders, Refund of Moneys Overpaid, Interest on Judgment Debts, Costs
Practice and Procedure Civil Procedure Formulation of Orders Refund of Moneys Overpaid Interest on Judgment Debts Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Woolworths Limited

Appellant

Sir Theo Kelly

Respondent

Procedural Posture

Appeal / Determination of Orders Following Appeal Judgment

Legal Issues

  1. 1 Entitlement to offset amounts paid as PAYE by the appellant
  2. 2 Whether respondent should refund gross or net overpayment
  3. 3 Whether interest should be payable and at what rate

Ratio Decidendi

On appeal, Woolworths Limited is entitled to have the orders and declarations of the primary judge set aside. The respondent, Sir Theo Kelly, must repay only the net sum he actually received and give assistance for recovery of PAYE to the appellant, but is not required personally to reimburse PAYE amounts absent evidence they were received by him, or their quantum. Interest is payable at the rate under s94 Supreme Court Act 1970. Costs are to be shared equally reflecting partial success by both parties.

Court Disposition

Appeal allowed in part; orders and declarations set aside; orders outlined for repayment, offset, interest, and costs.

Orders

  • Appeal allowed in part
  • Set aside the declaration and orders made by Cole J