Australian Healthcare Technology Limited v Harfield - [2005] WADC 175

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AUSTRALIAN HEALTHCARE TECHNOLOGY LIMITED -v- HARFIELD [2005] WADC 175

CORAM: COMMISSIONER ARCHER

HEARD: 30 JUNE-1 JULY 2005

DELIVERED : 16 SEPTEMBER 2005

FILE NO/S: CIV 98 of 2003

BETWEEN: AUSTRALIAN HEALTHCARE TECHNOLOGY LIMITED (ACN 009 203 203)
Plaintiff
AND
BARRY GLENN HARFIELD
Defendant

Catchwords:

Misleading or deceptive conduct - Breach of contract - Warranty to the best of knowledge and belief - Ordinary course of business - Turns on its own facts

Legislation:

Fair Trading Act 1987

Trade Practices Act 1974

Result:

Judgment for the plaintiff in the amount of $27,280 plus interest

Representation:

Counsel:

Plaintiff: Ms C Thompson
Defendant: In person

Solicitors:

Plaintiff: Simon Watson
Defendant: Not applicable

Case(s) referred to in judgment(s):

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470
Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325
Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64
Government Employees Superannuation Board v Martin (1997) 19 WAR 224
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388
Parkdale Custom Built Furniture Pty Ltd v Puxa Pty Ltd (1982) 149 CLR 191

Case(s) also cited:

Prestia v Aknar (1996) 40 NSWLR 165
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Tobacco Institute of Australia Ltd v Woodward (1993) 32 NSWLR 559

COMMISSIONER ARCHER:

The claim

The plaintiff claims damages alleged to be caused by the defendant engaging in conduct that was misleading or deceptive or likely to mislead or deceive, contrary to s 10 of the Fair Trading Act 1987 ("the FTA") and further, or in the alternative, by the defendant's alleged breach of contract.
The plaintiff's Further Amended Statement of Claim also claimed damages for an alleged contravention of s 52 of the Trade Practices Act 1974 and negligent misrepresentation. However, at the commencement of the trial, counsel for the plaintiff indicated that reliance would not be placed on those matters. The trial proceeded, therefore, on the basis of the claims under the FTA and for breach of contract.
Although the defendant had been legally represented in the interlocutory stages of the proceedings, he was unrepresented at trial.

The facts

The plaintiff is a company which purchased the defendant's 50 per cent share in a company called Medical Windows Australia Pty Ltd ("MedWin").
MedWin was the trustee for the Medical Windows Unit Trust. It developed and supplied practice management software for use by the medical profession. The defendant was a director of MedWin and, at all material times, was acting in his capacity as director of MedWin and as an employee of the MedWin Trust.
The software which MedWin produced was written in a program called Omnis. Omnis is a software development language which allows software developers to write software programs more easily. The developers can use Omnis, rather than having to write in basic machine language.
During the relevant time, Omnis was owned by Raining Data Corporation ("RDA"), but a company called the DLA Group had the exclusive right to distribute Omnis Software in Australia. Accordingly, before it could use the Omnis Software, MedWin needed to obtain a licence from the DLA Group. At all relevant times, the terms of that licence were as follows.
"Grant of Licence
RDC Software is licensed, not sold. RDC grants you an non-exclusive licence for the use of the Software as follows. You may either:
Individual machine usage:
(a) install the Software on multiple computers, any platform type, provided that those computers are used solely by you at all times; or
(b) install the Software on a single computer, which may be used by different users from time to time but not simultaneously.
If the Software is to be used by more than one user under option (a) above or on more than one computer under option (b) above, you must purchase a number of copies (or a multi user licence representing multiple copies) of the Software equal to the number of users under option (a) or computers under option (b)."
It was clear from the terms of the documents and from the evidence called on behalf of the plaintiff that the effect was that every user of the practice management equipment software needed to have an individual licence to use the Omnis Software. If a medical practice had eight doctors, and each of them was entitled to simultaneous access to the practice management software from eight different computers, there would need to be eight Omnis licences to go with that software.
The plaintiff called Mr deBeyer, a director of its company at the relevant time. Mr deBeyer said that the plaintiff became interested in purchasing MedWin in 2001. Originally, they had hoped to purchase the entire business. However, a Mr Smith, who owned 50 per cent of the business was unwilling to sell his share. Accordingly, the plaintiff turned its attentions to the defendant, who owned the other 50 per cent.
Originally, the defendant wished to sell his business on a "walk–in – walk–out" basis. Indeed, an "in principle" agreement to that effect was signed by Mr deBeyer on behalf of the plaintiff company (as it then was, namely B2B Net Technology Limited). The purchase price was to be $500,000 cash. However, Mr deBeyer said that, as the plaintiff was a publicly listed company, it was decided that it could not enter into arrangement on that basis. Rather, it would be necessary to be able to justify the purchase price to the shareholders. Mr deBeyer was asked how the purchase price was calculated. He said:
"Well, as a beginning point, Mr Harfield had made it clear that he wanted a certain sum for his half of the business. As a publicly listed company ... we – particularly as there was some interesting events taking place in the industry between April of 2001 – when the start of the dotcom crash – and at the time that we concluded the negotiation we felt that we needed to make sure that we could for shareholders and a public company justify the price that we were paying because there was some non-market related prices being paid for technology companies at that point in time. We took a view that based on the business' profitability we were happy to apply a multiplier which was significantly lower than multipliers – had been applied the previous year for example, and at that basis, if I remember correctly, we came across a hard valuation in the extent of the whole business of $800,000, therefore valuing Mr Harfield's share at $400,000, and we were quite comfortable that the remaining 100 was a fair price to pay for intellectual properties that the business owned as well as a restraint of trade that Mr Harfield agreed to, further protecting the business going forward."
Mr deBeyer was unable to recall precisely what the multiplier was. He said "I think it was 4 or 4.7, exactly – I can't remember but it was around that." He was then asked by his counsel:
"So it was about 4.7?" and he replied "If you'd said to me that the documentation – I believe Michael Barrett had some workings and it probably will show 4 point something – 75 maybe. Again, I've seen it but I can't remember it exactly right now."
No other evidence was led of the multiplier.
Mr deBeyer said that the figure to be multiplied was the profits shown in the June 2001 Profit and Loss Statements, after a deduction for an amount that represented the profit created by conversion from a cash based accounting system to an accrual based accounting system ("the adjusted 2001 profit"). That figure was $205,267. Ultimately $490,000 was agreed on as being the purchase price.
Furthermore, Mr deBeyer said that the plaintiff made it clear that it would require warranties from the defendant in order to avoid being exposed to limitless liability. Mr deBeyer said he specifically had in mind being sued by Microsoft should it turn out that some of the software being supplied by MedWin was unlicensed. Later, he said he saw the risk of being sued by Microsoft or DLA as a major risk, and that it was one of the issues he concentrated on. In addition, he said that they were operating under a very tight timeframe, and while due diligence was done on the books of the company, there was simply not time to do due diligence on the licences.
Mr deBeyer said that, being a publicly listed company, the plaintiff did not want to be seen to be taking advantage of an individual businessman. Accordingly, the plaintiff paid $3,000 towards the legal fees of the defendant incidental to the preparation and execution of the contract and all other matter associated with the sale.
Under cross-examination by the defendant, Mr deBeyer agreed that the defendant had raised a number of times his desire not to have the warranties included in the contract. However, Mr deBeyer was adamant that he repeatedly explained to the defendant why the plaintiff insisted on those warranties remaining. Mr deBeyer said he was "comfortable" that the defendant understood that. In any event, there is no doubt that the contract was ultimately executed with the warranties in place. While the defendant made some submissions from the bar table, there is no evidence before me that the defendant entered into that contract other than willingly.
The contract included the following clauses:
"5.WARRANTIES
5.1To the best of his knowledge and belief, Harfield represents and warrants to B2B as at the time immediately before Completion in the terms set out in Schedule 2.
5.2Harfield indemnifies B2B against all liabilities, losses, damages, actions, claims, costs, charges and expenses suffered or incurred by B2B as a result of any of the representations or warranties contained in clause 5.1 proving to be incorrect.
5.3Harfield acknowledges that B2B enters into this Agreement in reliance upon the Warranties and the B2B would not have entered into this Agreement but for the Warranties.
5.4Each of the Warranties is to be construed independently of the others and is not limited by reference to any other Warranty."
"SCHEDULE 2
WARRANTIES
…
3.1Information accurate
To the best of Harfield's knowledge and belief, all information given by or on behalf of Harfield or his advisers to B2B or its advisers in respect of the sale of the MedWin Units is accurate and not misleading.
4.THE 2001 ACCOUNTS
4.1Basis of preparation
In all material respects, the 2001 Accounts:
(a)Have been prepared in accordance with appropriate accounting standards required under the Corporations Law;
(b)Where any item has been prepared on a different basis from that described in (a) above over the previous 5 financial years, the deviation from the appropriate accounting standards is explained to B2B in writing;
(c)Show a true and fair view of the financial position and the assets and liabilities of the MedWin Trust at the 2001 Accounts Date and of the income, expenses and results of the operations of the MedWin Trust for the financial period ended on the 2001 Accounts Date;
(d)Are not affected by any unusual or non-recurring item (other than the change from a cash basis to an accruals basis for 2001);
(e)Take account of all gains and losses, whether realised or unrealised, arising from foreign currency transactions;
(f)Includes all Tax liabilities of the MedWin Trust in respect of any period up to the 2001 Accounts Date;
(g)Include all liabilities of the MedWin Trust at the 2001 Accounts Date;
and
(h)Set out all contingent liabilities of the MedWin Trust at the 2001 Accounts Date.
5.POSITION SINCE 2001 ACCOUNTS DATE
5.1Position since 2001 Accounts Date
Since the 2001 Accounts Date:
(a)The business of the MedWin Trust has been conducted in the ordinary course of ordinary business and in a proper and efficient manner;
(b)The MedWin Trust has not disposed of any of its assets other than in the ordinary course of ordinary business;
(c)The MedWin Trust has not acquired any assets other than in the ordinary course of ordinary business;
(d)The MedWin Trust has not incurred any liabilities other than in the ordinary course of ordinary business;
(e)There has been no material adverse change affecting the business of the MedWin Trust, the assets of the MedWin Trust or the financial or trading position or prospects of the MedWin Trust; and
(f)No dividends, bonus issues or other distributions or repayments of shareholders' loans have been declared, made or paid by the MedWin Trust.
…
11.COMPLIANCE WITH LEGISLATION
11.1Licences obtained
(a)To the best of Harfield's knowledge and belief, the MedWin Trust has all necessary licences, consents, permissions, authorities and permits required to conduct its business and have paid all fees due in relation to them and complied with all conditions under them; and
(b)To the best of its knowledge and belief, Harfield does not know of any factor which might prejudice the continuance of renewal of any licence, consent, permission, authority or permit required under Warranty 11.1(a)."
The contract was signed and completed on 12 September 2001. Almost immediately, the plaintiff's accountant, Mr Wandless, moved into the premises of MedWin to work from those premises for the business and also for the plaintiff in its other roles.
It became clear to Mr Wandless that MedWin was issuing a number of licences and yet did not seem to be purchasing them. Eventually, the matter was reported to Mr deBeyer, who ordered a thorough investigation.
Mr Wandless gave evidence that he accessed the records of the company in an effort to work out how many licences appeared to have been used without being purchased. He also obtained information from the DLA Group, via a Mr Lewis. Mr Wandless was unable to remember precisely what he had done, and what records he had complied. However, it was clear that he had examined the records from a number of different angles in an effort to cross‑reference, cross‑check and ensure that nothing was overlooked. Ultimately, whichever path he took, the result was the same. He concluded that there were 341 licences that had been issued without having being paid for ("the duplicate licences"). Whatever gaps there were in his memory, it was clear that he had satisfied himself that there were that many duplicate licences. I am satisfied that there were 341 duplicate licences.
The plaintiff entered into an arrangement with DLA to repay the cost of the duplicate licences over a 12 month period by instalments. The total amount for the 341 licences was $54,560. It was clear from the records of the company that that amount has been paid. There was evidence that the plaintiff attributed half of that cost to the other part owner of MedWin, Mr Smith. Accordingly, the cost to the plaintiff was $27,280.

The warranties

The plaintiff alleges that the defendant engaged in conduct that was misleading or deceptive by providing the express warranties.
Section 10 of the FTA provides:
"10. Misleading or deceptive conduct (TPA s. 52)
(1) A person shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in this Part shall be taken as limiting by implication the generality of subsection (1)."
Section 5(4)(a) of FTA provides:
"(4)In this Act —
(a)a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including —
(i)the making of, or the giving effect to a provision of, a contract or arrangement; or
(ii)the arriving at, or the giving effect to a provision of, an understanding;"

Knowledge

The warranties in this case all speak in terms of "to the best of his knowledge and belief". Accordingly, it is necessary to examine the defendant's knowledge.
Mr Lewis of the DLA Group gave evidence that from the 30 June 2000 until December 2001 MedWin did not get any licences from DLA. As MedWin had always had licences prior to that period of time, and as he believed they were still carrying on a business, it was a matter of concern to him. Mr Lewis said that he repeatedly contacted Mr Harfield to raise this matter with him, by telephone and by email. Accordingly, that is some evidence from which an inference could be drawn that Mr Harfield was aware that licences were not being obtained from DLA.
Further, not only was Mr Harfield a director, he was heavily involved in the running of the administration side of the business. Mr deBeyer gave evidence that Mr Harfield was the developer of the software. Mr deBeyer understood that Mr Harfield did the books, managed the staff and did the majority of the negotiations with DLA. He understood that Mr Smith handled the sales side of the business.
Mr Wandless said that the defendant had total knowledge of the administration of the business. He said that the defendant was able to answer every query Mr Wandless had.
Mr Lewis said that in relation to sales of Omnis licences, he dealt almost exclusively with the defendant.
The defendant did not materially challenge any of the evidence given by the witnesses, and I accept the evidence of each witness entirely.

Warranty 11.1 of Schedule 2

In the context of the business run by MedWin, the expression "Licences" in clause 11.1 must include licences to utilise Omnis.
I am satisfied that Mr Harfield knew that MedWin did not have all necessary licences as required by 11.1 of Sch 2 to the contract.
Engaging in conduct for the purposes of the FTA may include making a contract (s 5(4) FTA). If a statement in a provision of the contract is false, that may constitute engaging in misleading or deceptive conduct: Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470, per Lockhart and Gummow JJ at 505. Conduct will be misleading or deceptive if it leads, or is likely to lead, into error: Parkdale Custom Built Furniture Pty Ltd v Puxa Pty Ltd (1982) 149 CLR 191, per Gibbs CJ at 198. The defendant need not have an intention to mislead: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 per Steven J, with whom Jacobs J agreed, at 228 and Murphy J at 234.
There is no doubt the representation was misleading. I am also satisfied that entering into the contract for the sale of a business would constitute engaging in conduct in trade or commerce: Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325. It is well settled that representations made in the course of the sale of the business constitutes conduct "in trade or commerce" for the purposes of the FTA. Accordingly, I am satisfied that the defendant did act contrary to s 10 of the FTA.
There is no doubt that the defendant was on notice that correct licensing was critical to the plaintiff. Mr deBeyer was emphatic that he had made that clear to the defendant. The terms of the contract, in particular cl 5.3, also makes it clear that the defendant must have known the plaintiff was relying on the warranties.

Warranties 4 and 5 of Schedule 2

It is not clear over what period the duplicate licences were "issued" by MedWin. In particular, it is impossible to say whether they were all issued prior to 30 June 2001 ("the 2001 accounts date") or, less probably, whether they had all been used after that date but prior to the sale. Accordingly, it is necessary to consider both cl 4 and cl 5 of the Sch 2.
Mr Harfield submitted that liabilities for unpaid licences would be liabilities incurred "in the ordinary course of ordinary business". Therefore, those liabilities did not need to be disclosed in the accounts.

However, the expression "other than in the ordinary course of ordinary business" only relates to the position since 30 June 2001. It is clear from cl 4 Sch 2 that no such exception applies to the 2001 accounts. Accordingly, if the liabilities to pay for any of the duplicate licences arose prior to 30 June 2001, they should have been disclosed in the accounts.
While it seems unlikely that many of those licences were duplicated in the period from 1 July 2001 to the date of this sale, it is possible. Liabilities for those unpaid licences would only need to be disclosed if they were not incurred "in the ordinary course of ordinary business". The plaintiff submitted that a liability that arose because of improper copying of software licences could not be a liability incurred in the ordinary course of ordinary business. I accept that submission. Accordingly, the liabilities for the unpaid licences should have been disclosed in the accounts.
There is a complete absence of evidence in respect of the time in which the various duplicate licences were obtained. Although one of the documents tendered by the plaintiff does appear to set out the dates that licences were obtained from DLA, there is no evidence as to when duplicates were issued and accordingly when the liability to pay further licence fees arose. It is of course possible that some of those duplications occurred even before the period of time covered by the 2001 accounts. I am satisfied that at least some licences were duplicated in the financial year ending on 30 June 2001. Accordingly, I am satisfied that, at the very least, warranty 4 Sch 2 was breached. What is difficult to determine, however, is the extent of the breach and consequently the extent of the loss.

Assessment of damages

I turn then to the assessment of the appropriate damages.
In assessing damages for breach of contract, the basic principle is that the injured party is to be placed in the situation which would have resulted from the proper performance of the contract: Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64. The defendant breached the contract by breaching the warranty in 5.1 and the warranties in Sch 2, cl 4, 5 and 11, each of which was false.
In considering the quantum of the damage, the warranty in 5.1 adds nothing to the warranties in Sch 2.
If the warranty in cl 4 of Sch 2 had been true, whatever unpaid duplicate licences were "issued" during that financial year would have been contained in the 2001 accounts.
If cl 5 of Sch 2 was true, the same would be so of any unpaid duplicate licences issued since the 2001 accounts date.
If cl 11 of Sch 2 was true, all of the licence fees would have been paid.
The plaintiff submitted that the damage suffered is the difference between the actual price paid for the units and their "value if the breaches had not occurred." The actual price was $490,000 less $1 (the value of the shares) less $30,933.32 (the value of the loan account). Accordingly, the actual price was $459,065.68.
The plaintiff further submitted that the value if the breaches had not occurred would be 4.775 (the multiplier) x [(the adjusted 2001 profit minus cost of duplicate licences) / 2] minus (the value of the shares plus the value of the loan account) = $328,876.64. The total reduction in value was claimed to be $130,187.04.
There are a number of problems with these submissions. Firstly, no evidence was led as to the value of the business. Ms Thompson explained "no expert evidence [was] needed because it was not a question of whether the value in the business was actually real value, it was a simple calculation." However, what that means is that the plaintiff's claim is not based on the value if the breaches had not occurred. Rather, it is based on what would have been paid for the business if the breaches had not occurred. However, even on that basis there are further significant obstacles to an assessment of damages as claimed.
Secondly, no evidence was led as to what the plaintiff would have done had the unpaid duplicate licence liability been disclosed in the accounts. Mr deBeyer was never asked whether he would have proceeded with the sale in any event or negotiated a different price. Yet the court is being asked to infer that the purchase price would have been recalculated by deducting the total amount of the unpaid duplicate licences and applying the multiplier (which Mr deBeyer could recall only to a limited extent as set out above) to an adjusted profit figure for 2001. In Government Employees Superannuation Board v Martin (1997) 19 WAR 224, Ipp J at 246 noted remarks made by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 ‑ 419 "to the effect that inferences should not be drawn favourable to one party when no attempt was made to prove those inferences by direct evidence." Ipp J continued:
"His Honour referred to a United States authority to the effect that:
'The omission to interrogate a friendly witness in respect to facts presumably within his knowledge is more significant than the failure to call such a person as a witness, and that the presumption that the testimony would not have been favourable to the party's case is stronger than the one which arises from the failure to produce such a person as a witness.' "
Ipp J concluded:
"While I accept the force of the point made, the court's approach must depend on the circumstances of the particular case."
In the case before Ipp J, the documents spoke for themselves. That is not so in this case. In my view, it is difficult for a court to infer that the plaintiff would have recalculated the purchase price in the way suggested, in the absence of evidence from the witness who could have been expected to have given that evidence if it had indeed been the case. It is clear that the method of determining the purchase price was reached in order to justify the purchase price to shareholders. The evidence does not suggest, much less establish, that the calculation actually represented the true value of the company. Nor is there any evidence that that is the maximum that the plaintiff would have paid for the business.
The third fundamental difficulty with the plaintiff's submissions is that there is no evidence to suggest that Mr Harfield would have accepted a lower amount. It is clear that Mr Harfield said all along that he wanted $500,000. An in principle agreement was reached for that sum. It appears that a figure of $490,000 was ultimately paid. The evidence does not disclose precisely why that differed from the $500,000. However, there is no evidence from which an inference could be drawn that Mr Harfield would have accepted an amount less than $490,000.
The fourth fundamental problem with the plaintiff's submissions is that there is no evidence that all of the duplicate licences were "issued" in the financial year ending in June 2001. Indeed, it was conceded that not all of them would have been. Accordingly, it would distort the profit and loss figures for that financial year if all of those licence fees were deducted from the profits for that year.
These problems prevent the plaintiff's damages for breach of contract being assessed in the manner claimed.
In assessing damages for misleading or deceptive conduct, it "should not be assumed that the loss or damage which a person suffers as a result of a contravention of Pt V is necessarily singular. Nor should it be assumed that loss or damage is incurred either as a loss on capital account, or as a loss on revenue account which, if to be compensated by an award of damages, must be translated into a single capital sum": Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at [49].
In this context, the plaintiff's damages are an amount representing the "prejudice or disadvantage as a result of altering … [its] position under the inducement of the misleading conduct": Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, per McHugh, Hayne and Callinan JJ at [46]. It is necessary, therefore, to consider what the plaintiff would have done differently had it not been misled.
The plaintiff does not claim damages on the basis that it would not have entered into the contract had it not been misled. It is not claiming for the difference between what it paid and the value of the business. Indeed, as already noted, no evidence was led as to the value of the business, and it is not known whether it was less than the price paid.
Rather, the plaintiff's claim appears to be based on the proposition that the price paid would have been less, had it not been misled. However, this claim suffers from the second, third and fourth problems set out above in relation to the breach of contract claim.
For all of those reasons, I am not satisfied that the plaintiff's loss can be calculated in the way submitted by the plaintiff.
The plaintiff also claimed its half of the cost of the duplicate licences, namely $27,280. The plaintiff is clearly entitled to this amount.
It is also of course appropriate to award interest on that sum which I do at 6 per cent. The interest needs to be calculated from the date upon which each instalment was paid. Counsel for the plaintiff helpfully provided a table setting out the appropriate calculations, although I note that interest was claimed on the total amount rather than on the plaintiff's half share. The amount claimed must therefore be halved.

INTEREST CALCULATION
Payment Date	Amount	Cumulative Amount	Interest Period		Days	Interest at 6% pa
1	21-Feb-02	$4,916.00	$4,916.00	21-Feb-02	14-Mar-02	21	$16.97
2	15-Mar-02	$4,916.00	$9,832.00	15-Mar-02	2-May-02	48	$77.58
3	3-May-02	$4,916.00	$14,748.00	3-May-02	30-May-02	27	$65.46
4	31-May-02	$4,916.00	$19,664.00	31-May-02	26-Jun-02	26	$84.04
5	27-Jun-02	$4,916.00	$24,580.00	27-Jun-02	22-Jul-02	25	$101.01
6	23-Jul-02	$4,916.00	$29,496.00	23-Jul-02	29-Aug-02	37	$179.40
7	30-Aug-02	$4,916.00	$34,412.00	30-Aug-02	19-Sept-02	20	$113.14
8	20-Sep-02	$4,916.00	$39,328.00	20-Sep-02	15-Oct-02	25	$161.62
9	16-Oct-02	$4,916.00	$44,244.00	16-Oct-02	13-Nov-02	28	$203.64
10	14-Nov-02	$4,916.00	$49,160.00	14-Nov-02	9-Dec-02	25	$202.03
11	10-Dec-02	$4,916.00	$54,076.00	10-Dec-02	19-Jan-03	40	$355.57
12	20-Jan-03	$484.00	$54,560.00	20-Jan-03	30-Jan-05	892	$8,000.14
TOTAL	$54,560.00	$9,560.60
Monthly rate after 30 June 2005			$272.80
Total interest (on $54,560) to end of August						$10,106.20
Plaintiff's half share						$5,053.10

Accordingly, the plaintiff is entitled to damages in the amount of $27,280 plus interest of $5,053.10 to 31 August 2005, and at 6 per cent from then until today.