Ali v Hartley Poynton Ltd

[2006] HCATrans 614

[2006] HCATrans 614

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No M36 of 2005

B e t w e e n -

LIYAKAT ALI (IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF RAHMAT ALI)

Applicant

and

HARTLEY POYNTON LIMITED

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 2006, AT 9.34 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant is the son of, and the executor of the estate of, Rahmat Ali (deceased).  Before he died, Rahmat Ali had brought an action in the Supreme Court of Victoria against the respondent claiming damages for breach of contract, negligent misrepresentation and misleading or deceptive conduct.  (He also alleged there had been breach of fiduciary duty, but these allegations were not developed at trial.)

After the trial had finished, but before judgment was given, Rahmat Ali died.

Section 29 of the Administration and Probate Act 1958 (Vic) (“the Administration Act”) provided (among other things) that:

“(1)Subject to the provisions of this section, on the death of any person, all causes of action subsisting against or vested in him shall survive against or (as the case may be) for the benefit of his estate:

Provided that this sub‑section shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other.

(2)Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person the damages recoverable for the benefit of the estate of that person –

(a)      shall not include any exemplary damages;”

The trial judge (Smith J) was not informed of Mr Ali’s death until after he had published reasons for judgment concluding that damages and exemplary damages should be awarded to Mr Ali.  The trial judge ordered that judgment should be entered for the executor of Mr Ali (the present applicant) in an amount which included the sum allowed as exemplary damages, and further ordered that the judgment “bear the date and take effect from” the date of the last day of the trial.

The Court of Appeal set aside the judgment and directed judgment for the plaintiff in an amount which did not include the amount allowed for exemplary damages and which reduced the amount allowed as damages in the nature of interest.

The applicant would seek to contend in this Court that s 29 of the Administration Act “did not abrogate the inherent jurisdiction of the Supreme Court to antedate a judgment” and “did not preclude the estate from enforcing a judgment for exemplary damages”. The applicant would also seek to challenge the Court of Appeal’s disallowance of penalty interest on one component of the compensatory damages allowed – an amount awarded for lost commercial opportunities.

Neither party seeks to make oral submissions on the application to this Court and it is, therefore, to be decided on the parties’ written arguments.

We see no reason to doubt the correctness of the Court of Appeal’s conclusion that the judgment entered by the trial judge should be set aside.  That judgment was entered in favour of the executor, and on no view was the executor entitled to recover exemplary damages.  Nor do we accept that it was open to the trial judge, by antedating the judgment, to preserve for the benefit of the estate any entitlement that Rahmat Ali would have had to an award of exemplary damages.  It is not necessary to consider the correctness of the analysis made by the Court of Appeal of the complex procedural manifestations of these underlying propositions.

The questions which the applicant would seek to agitate about the allowing of penalty interest raise no issue of general principle suitable to a grant of special leave.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.  I publish that disposition.

AT 9.38 AM THE MATTER WAS CONCLUDED