Catalano v Zollo - [2006] SADC 125

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
CATALANO v ZOLLO
[2006] SADC 125
Judgment of His Honour Judge Tilmouth
11 October 2006
INTEREST
Damages awarded in favour of the plaintiff. Awards of interest thereon.
COSTS
Plaintiff to recover the costs of the action fixed at 90% of the applicable scale.

CATALANO v ZOLLO
[2006] SADC 125

The court previously delivered reasons in this matter proposing various orders, reserving to the parties liberty to speak to those orders and as to consequential matters, such as costs and interest[1]. This judgment deals with those residual matters.
[1] Catalano v Zollo [2006] SADC 111 (22 September 2006).
The first plaintiff seeks costs of the action. Costs against Mrs Catalano were conceded. Mr Catalano also sought interest in relation to the three separate sums for which damages are to be awarded, $85,800, $58,372.80 and $10,000 respectively.
The defence resisted orders for costs on the basis that the original claim, as then formed, was in effect an ambit claim. Furthermore the precise basis for calculating the level of damages sought, was only formulated or became evident during the hearing. Awards of interest were inappropriate, given that fact and because the corporate defendant was joined relatively late. This following an application to strike out the proceedings as they then were, on the basis that the principal action should always have been against Zollo Nominees Pty Ltd. That application led to an order being made by a Master of this court on 8 March 2005, joining that corporation as a defendant.
In the result the male plaintiff has established liability, the major issue in the trial, under both statutory causes of action. So far as damages is concerned, although awards are to be made in amounts significantly less than the original claim, it was clear from the commencement of the trial that the plaintiff’s claim was limited to losses recorded in the taxation returns of the family trust and/or of Mr Catalano. Ultimately judgment will be entered in not insignificant sums. The defendants also point out that the plaintiff was unsuccessful on one issue of liability, namely the oral misrepresentations alleged against the agent of the vendors.
These proceedings were transferred into this court in November 2002. The transaction in question occurred in February 2000, approximately six and a half years ago. The loss attributable to the difference in the price paid and the value of the business (assessed at $85,800) fell immediately upon settlement of the subject transaction, whereas the damages attributable to loss of profits (assessed at $58,372.80) were sustained progressively over the course of the contract, and then not evenly. They became heavier as time went on.[2] Accordingly, it would be inappropriate to award full interest on that sum over the entire period.
[2] Refer footnote 50 in judgment [2006] SADC 111.
Mr Cole for the plaintiffs proposed a simple calculation, suggesting a rate of 5% (which Mr Strawbridge conceded was reasonable) over four years on all three awards. He contended the shorter period…

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 Catalano v Zollo

Details

AGLC: Catalano v Zollo [2006] SADC 125
Case: [2006] SADC 125
Decision Date: 11 October 2006

CaseChat Overview and Summary

In the District Court of South Australia, Carl Antonio Catalano and Angela Margaret Catalano initiated proceedings against Gerry Zollo, Julie Zollo, and Zollo Nominees Pty Ltd. The primary dispute concerned damages for misrepresentation, breach of statutory duty, and breach of contract in relation to a business transaction. The court had to determine the appropriate amount of damages and whether interest should be awarded on the damages. Additionally, the court needed to decide on the costs of the action and who should bear these costs.

The court considered the arguments presented by both parties regarding the calculation of interest on the awarded damages and the appropriateness of such awards. The plaintiff argued for a simple calculation of interest over a shorter period to offset the incremental nature of the loss of profits. The defendants contended that interest should not be awarded on the loss of profits due to the difficulty in identifying when these losses fell. The court ultimately decided that full interest should be awarded on the damages for the loss in value of the business, but a reduced interest should be applied to the loss of profits based on when these losses fell. A minimal interest award was also made on the third sum of damages.

The court ruled that Carl Antonio Catalano was entitled to 90% of his costs of the action against Zollo Nominees Pty Ltd, excluding the costs incurred on the last day of the hearing. Angela Margaret Catalano was ordered to pay her own costs of the action. The court also ordered specific amounts of damages with interest to be paid by the defendants to Carl Antonio Catalano. Finally, the action brought by Angela Margaret Catalano was dismissed with costs.

Orders