Anchen v Mendes da Costa - [2005] VSC 191

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6107 of 2004

JOHN BRIAN ANCHEN	Plaintiff
V
WINNEKE MENDES DA COSTA	Defendant

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JUDGE:	Ashley J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2005
DATE OF RULING:	7 June 2005
CASE MAY BE CITED AS:	Anchen v Mendes Da Costa
MEDIUM NEUTRAL CITATION:	[2005] VSC 191

Judgment – interest before judgment – applicability of s. 58(1), Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I. R. Jones	Coadys
For the Defendant	In person

HIS HONOUR:

On 9 May 2005 I delivered Reasons favourable to the plaintiff in this proceeding and made orders accordingly. I reserved for later decision an application by the plaintiff for interest on judgment up to that date. The application was made – although there was a period up to 27 May 2005 during which the plaintiff considered whether to press it – in reliance on s. 58(1) of the Supreme Court Act 1986. Interest was sought from 1 August 2003 on the amount of $197,097.40 which I had declared the plaintiff was entitled to be paid by the defendant. Concerning that amount, I had concluded, in substance, that it was held by the defendant on a constructive trust in favour of the plaintiff.[1]
[1]See [32] and [112]

In support of the application, plaintiff’s counsel submitted that from 1 August 2003, the date on which the property sale was settled, the plaintiff had been a “creditor” in respect of a “sum certain”. He submitted that the amount was payable by virtue of a written instrument – being the Deed of 3 February 1997[2] together with the operative contract of sale; and that it became payable on the date of settlement.
[2]Which led to the Orders of the Family Court made that day

Counsel referred to Dimos v Willetts and anor[3]. There it had been held that moneys held in trust pursuant to court order did not meet the language of s. 58(1).[4] That decision, he submitted, was to be contrasted with the decision of Osborn J in Maher and ors v Millennium Markets Pty Ltd and ors[5]. His Honour had there held that moneys received by a solicitor in breach of fiduciary duty to his clients, could fall within s. 58(1).[6] This proceeding was akin to Maher, subject only to there being a “date certain” where in Maher that had not been so.
[3](2000) 2 VR 170
[4]See per Tadgell JA at [10], [12]; per Batt JA at [108]
[5][2004] VSC 174, [2004] VSC 195
[6]See at [2004] VSC 195, [13], [14]

The defendant made no submission which addressed the legal position. She did say, poignantly, that the fate of the application mattered not, because she could not pay in any event.

The amount of interest claimed was calculated by plaintiff’s counsel, for the period between 1 August 2003 and 9 May 2005, at $40,527.81.

Regardless whether the defendant considered that…

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 Anchen v Mendes da Costa

Details

AGLC: Anchen v Mendes da Costa [2005] VSC 191
Case: [2005] VSC 191
Decision Date: 7 June 2005

CaseChat Overview and Summary

Anchen sued Mendes da Costa for breach of contract, seeking both damages and an order for interest pursuant to section 58(1) of the Supreme Court Act 1986. The case was heard by the Supreme Court of Victoria. The central issue in this case was whether the statutory interest prescribed by section 58(1) of the Supreme Court Act 1986 could be awarded before the final judgment was given. The court had to determine the appropriate legal interpretation and application of this provision in the context of pre-judgment interest.

The court examined the text of section 58(1), which provides for interest to be awarded at a specified rate from the date of the writ until the date of satisfaction of the judgment. The court considered whether the use of the term "satisfaction" indicated that interest should only accrue post-judgment, or if it could also apply before the judgment was delivered. The court also looked at relevant case law and statutory interpretation principles to guide its decision.

The court concluded that the phrase "satisfaction of the judgment" in section 58(1) did not preclude the award of pre-judgment interest. It held that the statutory interest could be awarded from the date of the writ until the date of the judgment, as this was consistent with the purpose of the provision to provide compensation for the delay in payment. The court found that the statutory interest was not limited to post-judgment periods, and therefore, it could be applied in this case.

The court ordered that Anchen was entitled to interest at the statutory rate from the date of the writ until the date of the judgment, in addition to the damages awarded. The court's decision clarified the applicability of section 58(1) of the Supreme Court Act 1986, confirming that pre-judgment interest could be awarded under this provision.

Orders