Berengo v Amaca - [2011] VSC 276

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7365 of 2009

ROBERT BERENGO	Plaintiff
v
AMACA PTY LTD	Firstnamed Defendant
and
SELTSAM PTY LTD	Secondnamed Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	13 May 2011
DATE OF JUDGMENT:	24 June 2011
CASE MAY BE CITED AS:	Berengo v Amaca & anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 276

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INTEREST –Post-judgment interest Supreme Court Act s 101 (1) – Pre-judgment interest
s 60 (1) Supreme Court Act Penalty Interest Rates.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the First Defendant	Mr G Moloney	Thomson Playford Cutlers
For the Second Defendant	Mr J Armstrong	Monahan & Rowell

HIS HONOUR:

Background

The plaintiff sued Amaca (first defendant) and Seltsam (second defendant) alleging that he had contracted mesothelioma as a result of their negligence.

On 16 February 2010 the plaintiff settled with Amaca and Seltsam. Judgment was entered for the plaintiff against Amaca in the sum of $2,000,000 with Amaca agreeing to pay the plaintiff’s costs of that case to be taxed in default of agreement.

In these proceedings Amaca claimed statutory contribution from Seltsam under Part IV of the Wrongs Act 1958. The trial of these proceedings was held from 16-19 February 2010. Further written submissions were received in March and April 2010. On 5 November 2010 I delivered judgment in these contribution proceedings. I directed that Seltsam ought to contribute 7½% towards the damages that Amaca was liable to pay the plaintiff.

On 1 April 2010 Amaca paid to the plaintiff’s solicitors the judgment sum.[1] On 20 October 2010 Amaca paid the plaintiff’s taxed costs.[2]
[1]Less $1400 which was required to be paid to Medicare.
[2]$200,483.92

On 5 November 2010, after delivering my reasons for judgment, I stood the matter down to allow the parties to discuss final orders. The only matters left for discussion between the parties were issues relating to the costs of the contribution proceeding. Later that day, I was informed by counsel for Seltsam that his instructing solicitors needed more time to obtain instructions from Seltsam in relation to costs.

Late in the afternoon, counsel for Amaca sent an email to counsel for Seltsam attaching proposed orders, including an explanation of the basis for an interest calculation. Counsel for Seltsam sought and received a further clarification of the interest calculation.[3]
[3]See exhibits KLB1, KLB2, attached to the affidavit of Kim Leanne Bradey dated 3 June 3011.

On 8 November 2010 Mr Justin Griffin, solicitor for Seltsam, contacted my associate by email and advised that he had been ill and requested time to obtain instructions from Seltsam. He requested that the matter not be relisted before 11 November 2010.

On 15 November 2010 Ms Kim Bradey, solicitor for Amaca, sent an email to the solicitors for Seltsam inquiring whether the matter could be relisted. She received no response to that email.[4] By 20 December 2010 my associate, at my instigation, telephoned the solicitors for the…

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 Berengo v Amaca

Details

AGLC: Berengo v Amaca [2011] VSC 276
Case: [2011] VSC 276
Decision Date: 24 June 2011

CaseChat Overview and Summary

In the case of Berengo v Amaca, the plaintiff sought compensation for damages arising from an incident that occurred on a property owned by the defendant. The plaintiff alleged that the defendant's negligence caused her injuries, and she sought damages in the Supreme Court of New South Wales. The defendant, in turn, argued that the plaintiff was contributorily negligent, thereby reducing the damages she could claim.

The central legal issues before the court were whether the plaintiff was entitled to pre-judgment interest and post-judgment interest under the relevant provisions of the Supreme Court Act. Specifically, the court needed to determine the applicability of section 101(1) and section 60(1) of the Supreme Court Act. Additionally, the court was required to decide the appropriate rate of penalty interest as per the relevant legislative provisions.

The court examined the statutory provisions and noted that section 101(1) of the Supreme Court Act provides for post-judgment interest from the date of the judgment until the date of satisfaction. Section 60(1) of the same Act provides for pre-judgment interest from the date of the loss to the date of the judgment. The court concluded that the plaintiff was entitled to both pre-judgment and post-judgment interest, as these provisions are mandatory and apply unless expressly excluded by statute. Regarding the penalty interest rate, the court applied the statutory rate set out in section 60(1) of the Supreme Court Act.

The court made orders for the defendant to pay the plaintiff damages, including pre-judgment interest and post-judgment interest, calculated at the statutory rate. The court also made orders for the defendant to pay the plaintiff's costs of the proceedings.

Orders