Perisher Blue Pty Ltd v Vidakovic [No 2]

[2006] NSWCA 326

New South Wales

Court of Appeal

CITATION:	Perisher Blue Pty Ltd v Vidakovic [No 2] [2006] NSWCA 326 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	On written submissions
JUDGMENT DATE:	27 November 2006
JUDGMENT OF:	Beazley JA; Ipp JA; Tobias JA
DECISION:	(1) Perisher Blue Pty Ltd have restitution in the amount of $138,751.95 plus interest from 16 November 2005 at the rate of 9%, being the monies paid to Mr Vidakovic pursuant to the orders of Ashford DCJ dated 21 October 2005. (2) Costs of the application for restitution be paid by Mr Vidakovic.
LEGISLATION CITED:	Supreme Court Rules 1970 (NSW), Pt 51, r 26
CASES CITED:	TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381
PARTIES:	Perisher Blue Pty Ltd (Appellant) Ilija Vidakovic (Respondent)
FILE NUMBER(S):	CA 40878/05
COUNSEL:	R E Montgomery (Claimant) D Baran (Opponent)
SOLICITORS:	Dibbs Abbott Stillman (Claimant) Petrovich Accident Lawyers (Opponent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 3116/04
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ
LOWER COURT DATE OF DECISION:	21/10/05

CA 40878/05
DC 3116/04

BEAZLEY JA
IPP JA
TOBIAS JA

Date

PERISHER BLUE PTY LTD v ILIJA VIDAKOVIC [NO 2]

Judgment – On Costs

1 THE COURT: On 21 September 2006 this Court allowed an appeal by Perisher Blue Pty Ltd from a judgment in the District Court in favour of Mr Vidakovic. The Court made the following orders:

“1. The appeal is upheld.
2. The judgment and verdict of the trial judge is set aside.
3. The respondent to pay the appellant’s costs of the appeal.
4. The matter is remitted to the District Court for retrial.
5. The respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if otherwise qualified.”

2 On 21 September 2006, immediately after judgment was delivered, the solicitor then appearing for Perisher Blue Pty Ltd applied for restitution of monies paid to Mr Vidakovic as a condition of an order made by the trial judge for a partial stay of execution. The application was refused on the ground that nothing had been said about this issue during the appeal and it was pointed out to the solicitor that a separate, independent application for the relief sought should be made.

3 By notice of motion filed on 16 October 2006 Perisher Blue now seeks orders for restitution of the monies paid pursuant to the order for stay of the trial judge’s judgment. Perisher Blue also seeks an order that the proceedings relating to the remitted trial in the District Court be stayed until restitution has been effected. The parties have filed evidence and written submissions, both in support of and in opposition to the notice of motion.

4 The only ground, in substance, on which Mr Vidakovic resists the application for restitution is the submission that “the Court of Appeal did not disturb the order for costs that was made in favour of the plaintiff in the Court below”. According to an affidavit by Mr Vidakovic’s solicitor, Mr Vidakovic’s costs of the trial are estimated as being $165,000 and the disbursements are more than $110,000.

5 The submission that the Court of Appeal did not disturb the order for costs has no foundation. The Court ordered that the verdict and judgment be set aside; that means that the orders for capital and costs be set aside. As is the usual course when such orders are made, the costs of the first trial will abide the outcome of the second trial.

6 The judgment of the trial judge that was set aside by this Court was delivered on 21 October 2005. By that judgment Mr Vidakovic was awarded damages in the amount of $277,503.90. The trial judge directed a stay of that judgment pending an appeal from her decision, on condition that 50% of the judgment sum was paid to Mr Vidakovic. On 16 November 2005 Perisher Blue paid Mr Vidakovic $138,751.95, being 50% of the judgment sum.

7 The appeal to this Court succeeded on the basis that the trial judge had made substantial errors in fact-finding. Thus, the case was remitted both in regard to liability and damages.

8 In TCN Channel 9 Pty Limited v Antoniadis [No 2] (1999) 48 NSWLR 381 the Court (constituted by Handley, Beazley and Stein JJA) said at 383, [8] that Pt 51AA r 18 of the Supreme Court Rules 1970 (NSW) “should be construed as conferring a power to order restitution and not a discretion to refuse it”. Their Honours went on to say:

“Of course orders for restitution may be moulded on discretionary grounds to provide for matters such as the date for repayment or delivery of possession, and perhaps for a stay of execution on appropriate security being given.”

9 There is no basis on which this Court could refuse Perisher Blue’s application for restitution of the sum of $138,751.95 it paid to Mr Vidakovic.

10 Mr Vidakovic has not sought that the order for restitution provide for an extended date for repayment or for a stay of execution on the giving of appropriate security.

11 Accordingly, Perisher Blue’s application for restitution must be upheld.

12 As a matter of discretion, the Court would not accede to the application for an order that the proceedings below be stayed until restitution is effected. We do not see the relevant circumstances as justifying such an order. Of course, it will be open to Perisher Blue to take steps according to law for recovery of the $138,751.95 should payment not be made by Mr Vidakovic.

13 Accordingly, the following orders are made:

(1) Perisher Blue Pty Ltd have restitution in the amount of $138,751.95 plus interest from 16 November 2005 at the rate of 9%, being the monies paid to Mr Vidakovic pursuant to the orders of Ashford DCJ dated 21 October 2005.

(2) Costs of the application for restitution be paid by Mr Vidakovic.

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28/11/2006 - Cover Sheet amendments: Legislation amended. Counsel for Claimant amended. - Paragraph(s) Not applicable