Amaca v CSR (No 2) - [2015] VSC 605

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2003 05689

AMACA PTY LTD (ACN 000 035 512) (Under NSW Administered Winding Up)	Plaintiff
v
CSR LTD (ACN 000 001 276)	First Defendant
and
BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357)	Second Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2015
DATE OF JUDGMENT:	4 November 2015
CASE MAY BE CITED AS:	Amaca v CSR & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 605

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INTEREST — Interest payable on contribution awarded pursuant to Part IV of the Wrongs Act 1958 (Vic) — Interest payable on contribution awarded by way of equitable remedy for the discharge of a coordinate liability — Whether interest should be awarded under s 58 or s 60 of the Supreme Court Act 1986 (Vic) (‘the Act’) — Distinction between ss 58 and 60 of the Act — Whether good cause also shown why s 58 of the Act should not apply — Whether initial letters to defendants constitute demands for payment pursuant to s 58(1) — Interest awarded under s 60 of the Act.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T G R Parker SC with Mr D Wallis	DLA Piper Australia
For the Defendants	Mr B F Quinn SC with Mr B Barr	Moray & Agnew

HIS HONOUR:

Introduction

On 21 October 2015 I published my reasons[1] for deciding to award contribution in favour of the plaintiff (now Amaca, formerly James Hardie) against one or both of the defendants (CSR and Bradford). James Hardie succeeded on five of the eight claims that had been selected for separate trial from the 204 claims made in the proceeding. Contribution was awarded in two cases pursuant to Part IV of the Wrongs Act1958 (Vic) (‘Wrongs Act’) and in three cases by way of equitable remedy upon the discharge of coordinate liability. An issue has arisen in respect of the appropriate calculation of interest on four of the five judgments.[2]
[1]Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582 (‘Reasons’).
[2]The contribution claim in relation to the fifth matter, McGuire, was not contentious because the plaintiff conceded it was unable to prove any demand for payment made before action. Of the four claims in contention, two were for contribution in equity (Alexander and Kracht) and two were for contribution under Part IV of the Wrongs Act (Benjamin and Johnstone).

The plaintiff argued that I should award interest under s 58 of the Supreme Court Act 1986 (Vic) (‘Act’) whereas the defendants argued that I should award interest under s 60 of the Act. In practical terms, the difference lies between awarding interest from the date the plaintiff made demands of payment upon the defendants before action or only from the date each claim for contribution was joined to the proceeding.

Sections 58 and 60 of the Act relevantly provide:

58 Interest to be allowed when debts…

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.

Continue reading Amaca v CSR (No 2)

Details

AGLC: Amaca v CSR (No 2) [2015] VSC 605
Case: [2015] VSC 605
Decision Date: 4 November 2015

CaseChat Overview and Summary

The matter between Amaca and CSR involved a dispute over the interest payable on a contribution awarded under Part IV of the Wrongs Act 1958 (Vic). Amaca was seeking interest on the contribution pursuant to an equitable remedy for the discharge of a coordinate liability. CSR contested the applicability of interest under the Supreme Court Act 1986 (Vic), specifically whether it should be awarded under section 58 or section 60 of the Act. The dispute was heard in the Supreme Court of Victoria.

The central legal issues before the court were the applicability of section 58 or section 60 of the Supreme Court Act 1986 (Vic) for the award of interest on the contribution. Section 58 pertains to interest payable on debts due to the court, while section 60 relates to interest payable on judgments or orders of the court. The court had to determine the distinction between these sections and whether there was good cause to not apply section 58. Additionally, the court examined whether the initial letters to the defendants constituted demands for payment under section 58(1) of the Act.

The court found that the interest should be awarded under section 60 of the Supreme Court Act 1986 (Vic). The distinction between sections 58 and 60 was that section 58 applied to debts due to the court, while section 60 applied to judgments or orders of the court. The court also held that there was good cause to not apply section 58, as the initial letters did not constitute demands for payment under section 58(1) of the Act. Consequently, the court awarded interest under section 60.

No further orders were made beyond the interest award under section 60 of the Supreme Court Act 1986 (Vic).

Orders