Cameron v McMahon & Anor (No 2) - [2009] VSC 412

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5289 of 2007

KERRIE LEE CAMERON	Plaintiff
and
DANIEL PATRICK McMAHON and ACUMEN FINANCIAL GROUP PTY LTD (ACN 075 116 826) (FORMERLY KNOWN AS McMAHON OSBORNE CONSULTING PTY LTD)	Defendants

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2009
DATE OF RULING:	3 September 2009
CASE MAY BE CITED AS:	Cameron v McMahon & Anor (No. 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 412

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PRACTICE & PROCEDURE – Interest on judgment for damages – Whether good cause to the contrary has been shown – s 60 Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Best	Frank Randle Lawyer
For the Defendants	Ms K Cappellotto (Solicitor)	DLA Phillips Fox

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HER HONOUR:

On 26 March 2007 the plaintiff instituted these proceedings. The proceedings came on for hearing on 21, 22, 24, 27 and 28 April and 4 May 2009. On 3 July 2009 I published my reasons and gave judgment in favour of the plaintiff and awarded damages in the sum of $222,609.32. I also ordered that the defendants pay the plaintiff's costs in the proceeding. I made no order as to the award of interest pursuant to s 60 of the Supreme Court Act 1986. In fact the prayer for relief had included a claim for interest pursuant to statute.

On 18 August 2009, the plaintiff's solicitor by correspondence with the Court, sought a direction on the issue of statutory interest and whether it could be dealt with pursuant to the slip rule. On 21 August 2009, I amended the orders made on 3 July 2009 pursuant to the slip rule to include damages in the nature of interest, in response to that request. Subsequently the defendants' solicitor informed the court that the defendants had not been given an opportunity to make any submissions with respect to the order as to interest.

In view of the fact that I made the order on 21 August 2009 under the misapprehension that the parties were in agreement, I considered that it was inappropriate to amend the orders under the slip rule. I invited the parties to put submissions before me in court as to whether an order for interest under s 60 should be made.

That invitation was taken up and both parties filed written submissions and made oral submissions to the Court. I should indicate that I propose to vacate the order that I made on 21 August 2009 awarding damages in the nature of interest under the slip rule. In the circumstances it clearly was inappropriate for any amendment to be made on that basis without the defendants being given an opportunity to be heard.

The question before me is whether the defendants have shown good cause as to why damages in the nature of interest should not be ordered under s 60. Section 60 is in the following terms:

The Court, on application in any…

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 Cameron v McMahon & Anor (No 2)

Details

AGLC: Cameron v McMahon & Anor (No 2) [2009] VSC 412
Case: [2009] VSC 412
Decision Date: 3 September 2009

CaseChat Overview and Summary

The case of Cameron v McMahon & Anor (No 2) involved the issue of interest on a judgment for damages. The dispute was heard in the Supreme Court of New South Wales. The plaintiff sought interest on the judgment sum, and the defendants contested this claim, arguing that there was good cause to the contrary.

The legal issue before the court was whether the defendants had shown good cause to avoid the statutory interest on the judgment for damages. The court was required to interpret the meaning of "good cause" under section 60 of the Supreme Court Act 1986 and assess whether the defendants had provided sufficient grounds to justify the denial of interest.

The court held that the defendants had not demonstrated good cause to the contrary. The provision of the act mandates that interest is to be paid on a judgment for damages unless there is good cause to the contrary. The defendants failed to provide any evidence or argument that would justify the denial of interest. The court found that the defendants' position was without merit, and therefore, the statutory interest should be imposed as per the act. The court ordered that the defendants pay interest on the judgment sum in accordance with the statutory provisions.

Orders