Ajaimi v Giswick Pty Ltd (No 3) - [2022] VSC 447

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2021 01055

HABIB AJAIMI	Applicant
v
GISWICK PTY LTD (ACN 098 613 837)	Respondent

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JUDGE:	M Osborne J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers, following receipt of submissions on 3, 14 and 21 June 2022
DATE OF RULING:	11 August 2022
CASE MAY BE CITED AS:	Ajaimi v Giswick Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2022] VSC 447

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TENANT AND LANDLORD — Interest entitlement asserted by tenant — Amount of interest owing on sum subject of a Court order.

JUDGMENT — Entitlement to post-judgment interest under Supreme Court Act 1986 (Vic) ss 58 and 101 – Interest on judgment — Penalty interest — Date when judgment was given — Appropriate rate of interest — Entitlement to interest under Retail Leases Act 2003 (Vic) s 91(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dean	JAG Lawyers
For the Respondent	Mr D Carlile	Peter Lustig

HIS HONOUR:

Introduction

Part 10 of the Retail Leases Act 2003 (Vic) (‘the Retail Leases Act’) deals with dispute resolution. It requires parties to a retail premises lease to engage in compulsory mediation before the Small Business Commissioner before legal proceedings are initiated. Proceedings must be commenced at the Victorian Civil and Administrative Tribunal (‘VCAT’), a comparatively low-cost and informal jurisdiction. The Retail LeasesAct provides that each party is to bear their own costs of the VCAT proceeding, save where conduct has been vexatious. The intent behind such a regime is to minimise the risk of incurring unnecessary and excessive legal costs where parties are in an ongoing commercial relationship.

It does not always succeed. This is such a case. The parties engaged in a hard fought seven day hearing at VCAT in August 2020. The relevant events the subject of the VCAT hearing took place between 5 October 2011 and 25 January 2019. Giswick Pty Ltd (‘the tenant’) was successful in the VCAT action. I heard an application for leave to appeal brought by Habib Ajaimi (‘the landlord’) pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘the VCAT Act’). I granted leave to appeal, allowed the appeal in part and reduced the sum required to be paid by the landlord to the tenant.[1] The parties could not agree on orders as to the costs of the appeal nor on the consequential costs orders at VCAT, and I determined those issues.[2]
[1]Giswick Pty Ltd v Ajaimi [2022] VSC 131 (‘Giswick No 1’).
[2]Giswick Pty Ltd v Ajaimi [2022] VSC 275 (‘Giswick No 2’).

Now they do not agree on the interest entitlement asserted by the tenant. The amount in issue is $16,257.40.[3] Although the further dispute is regrettable, the issues raised are not altogether free from complexity.
[3]As at 2 June 2022, the landlord has paid $211,758.69 to the tenant. This represents the order for payment on appeal of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 447
Decision Date: 11 August 2022

CaseChat Overview and Summary

Ajaimi v Giswick Pty Ltd (No 3) involved the tenant, Ajaimi, and the landlord, Giswick Pty Ltd, in a dispute regarding the entitlement to post-judgment interest. The case was heard in the Supreme Court of Victoria. The central issue was the calculation of the interest amount owed on a sum that had been the subject of a previous court order.

The court had to decide several legal questions, including the entitlement to post-judgment interest under sections 58 and 101 of the Supreme Court Act 1986 (Vic), the interest on the judgment itself, the penalty interest, the date from which the judgment was given, the appropriate rate of interest, and the entitlement to interest under section 91(2) of the Retail Leases Act 2003 (Vic). The court had to interpret these statutory provisions and apply them to the facts of the case.

The Supreme Court of Victoria held that the tenant was entitled to post-judgment interest from the date of the previous judgment until the date of satisfaction of the judgment. The court determined the appropriate rate of interest based on the statutory provisions and the context of the case. Additionally, the court found that the tenant was entitled to interest under section 91(2) of the Retail Leases Act 2003 (Vic), which provided for interest on certain payments. The court meticulously calculated the amount of interest owed, ensuring that the tenant's entitlement was properly recognised and enforced.

The court's final orders included the determination of the exact amount of post-judgment interest owed by the landlord to the tenant, reflecting the court's detailed analysis of the statutory provisions and the specific circumstances of the case.

Orders