I can't comment but do offer the following information, based on distant memories of the first case and a quick trawl through the citator.

The Australian case that seems to say most clearly that when a judgment is set aside recovery is obvious and automatic is Production Spray Painting & Panel Beating Pty Ltd v Newnham (No2) (1992) 27 NSWLR 659 (NSWCA). But it is not so obvious that it doesn't require analysis of several centuries of case law and characterisation of the basis of recovery as restitution. Recovery is denied when it cannot be characterised as restitutionary. The New South Wales Court of Appeal does not identify a specific unjust factor and 'restitution' seems to be a convenient -- content-free? -- label rather than an invocation of the restitution-for-unjust-enrichment paradigm. (Paraphrasing the headnote: When the Supreme Court, as a superior court exercising its supervisory jurisdiction, quashes orders of an inferior court, the claimant is entitled to an unconditional order for the repayment by way of restitution of any sum paid pursuant to those orders. The Supreme Court has no discretion to withhold such relief and no jurisdiction to entertain cross-claims raised by the opponent. The Supreme Court cannot make an order for the recovery of costs incurred by the claimant in the inferior court, as no question of restitution is involved.) The decision seems to have been applied in two further New South Wales cases, both using the language of restitution: Proprietors of Strata Plan 5399 v Feehan (Unreported, Young J, 8 February 1996) and Haig v Minister Administering the National Parks & Wildlife Act 1974 (No3) (1996) 90 LGERA 408. I haven't sighted either of these.

There is also a Queensland case, Idemitsu Queensland v Agipcoal Australia Pty Ltd [1996] 1 Qd R 26 (Qld CA), in which recovery is put on the basis of 'restitution' without clear elaboration of what that meant (with the result that the appellant's claim for what was essentially compensation failed). One judge put the basis of recovery thus:

"This survey shows that the principle on which the courts have for centuries acted is that when an erroneous judgment or order is overturned, whether by means of appeal or by any other procedure, the court will achieve a just result by requiring anything that has been taken from him by the other party by virtue of the wrong decision to be restored. Interest is for this purpose treated as the fruit of money and he who has had the use of money will not be heard to say that there were no fruits. The principle is, as it was in the reign of the first Elizabeth (Eyre v Woodfine Cro Eliz 278; 78 ER 533), one of restitution or restoration. The court is seeking to restore to one party what it has wrongly taken from him and given to the other. It does not seek to restore the successful party to his former position by awarding damages to compensate him for loss flowing from the erroneous judgment or order. There is no basis for an award of damages."

There are other cases; I haven't followed them up. Others may care to.

--
Dr Simon Evans
Faculty of Law
University of Melbourne
VIC 3010
Phone: +61 3 9344 4751
Fax: +61 3 9347 2392
WWW: http://www.law.unimelb.edu.au