Chiropedic Bedding Pty Ltd v Radburg Pty Ltd
[2010] FCA 1167
FEDERAL COURT OF AUSTRALIA
Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2010] FCA 1167
Citation: Chiropedic Bedding Pty Ltd v Radburg Pty Ltd
[2010] FCA 1167Parties: CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808) v RADBURG PTY LTD (ACN 006 020 702) File number: VID 288 of 2007 Judge: JESSUP J Date of judgment: 29 October 2010 Catchwords: PRACTICE AND PROCEDURE – Judgment sum determined following account of profits – Applicant seeking interest on judgment sum – Entitlement to interest where judgment sum determined one year after judgment delivered Legislation: Federal Court of Australia Act 1976 (Cth) s 51A, 52
Federal Court Rules O 39Date of hearing: Heard on the papers Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: Ms S Ryan Solicitor for the Applicant: Actuate Intellectual Property Counsel for the Respondent: Mr J Samargis Solicitor for the Respondent: Lawcorp Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 288 of 2007
BETWEEN: CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808)
ApplicantAND: RADBURG PTY LTD (ACN 006 020 702)
Respondent
JUDGE:
JESSUP J
DATE OF ORDER:
29 OCTOBER 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.In addition to the sum certified by the Registrar this day, the respondent pay to the applicant the sum of $42,721.00 in lieu of interest pursuant to s 51A(1)(b) of the Federal Court of Australia Act 1976 (Cth).
2.The applicant’s costs of its claim for interest be its costs in the account, without reduction.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 288 of 2007
BETWEEN: CHIROPEDIC BEDDING PTY LTD (ACN 052 960 808)
ApplicantAND: RADBURG PTY LTD (ACN 006 020 702)
Respondent
JUDGE:
JESSUP J
DATE:
29 OCTOBER 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 14 October 2009, I gave judgment for the applicant in this proceeding in respect of the beds described as “Ambassador – Pocket Spring” and “Chiro Deluxe”: Chiropedic Bedding Pty Ltd v Radburg Pty Ltd (2009) 181 FCR 446. I ordered that an account of the profits derived by the respondent from the sale of such beds be taken before a Registrar of the court pursuant to O 39 of the Federal Court Rules. An account of profits has now been taken before a Registrar, who has certified his account this morning pursuant to O 39 r 10 of the Federal Court Rules.
The applicant has claimed interest on the sum certified by the Registrar pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). The parties are agreed that the applicant is entitled to interest, and with respect to the amount of that entitlement: $42,721.00. Interest under s 51A is not, however, a matter in respect of which a Registrar of the court may exercise power. In the circumstances, the matter has been referred back to the court for the making of the appropriate order.
Although the applicant’s entitlement to interest appears clearly to fall within the general objects of s 51A, there is a question whether, and if so how, para (a) of subs (1) thereof applies to a situation in which a party’s entitlement to a sum of money on judgment arises not on the day of judgment as such but on a later day pursuant to the taking of an account. That is because the kind of order which the court is empowered to make under para (a) is confined to an order –
… that there be included in the sum for which judgment is given interest at such rate as the Court or the Judge, as the case may be, thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date as of which judgment is entered.
In the present case, judgment was entered on 14 October 2009. That was more than 12 months before the sum to which the applicant is entitled was identified under the Registrar’s certificate. It has not been suggested that the applicant’s entitlement to interest should be calculated without reference to the period which has been required for the taking of the account.
Section 52(1) of the Federal Court Act, which provides that a “judgment debt under a judgment of the Court carries interest from the date as of which the judgment is entered” appears to be inapplicable – or applicable only in a very odd way – to circumstances in which the sum ultimately found to be due to an applicant is not known until well after the entry of the judgment concerned. In the present case, I do not consider that, at any time before today, there was, a “judgment debt” of which the applicant was the beneficiary.
In the circumstances, I consider that the power of the court under para (b) of subs (1) of s 51A might be appropriately exercised. Under that paragraph, the court may –
… without proceeding to calculate interest in accordance with paragraph (1), order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.
While the section contemplates the making of an order that “there be included” in the judgment sum a sum in lieu of interest, as a practical matter, what the court is authorised to do is to add to the sum to which the successful party would otherwise be entitled a sum in lieu of interest, and to give judgment for the whole. In the present case, since final judgment for the sum to be found due on the taking of the account has already been given, I propose not to disturb the orders which I then made, but to add to them an order that the respondent pay to the applicant a sum in lieu of interest under s 51A(1)(b).
I should record that the Registrar has made available to me the parties’ written submissions on the matter of interest. By reference to a calculation in the Joint Report of the experts engaged by the parties dated 1 October 2010, the applicant has claimed the sum of $42,721.00, and the respondent accepts that sum as appropriate.
For the above reasons, I propose to order that, in addition to the sum certified by the Registrar, the respondent pay to the applicant the sum of $42,721.00 in lieu of interest under s 51A(1)(b) of the Federal Court Act, such payment to be made at the same time as the payment due to the applicant under Order 4 made on 14 October 2009.
To the extent that the applicant incurred costs in connection with its claim for interest, I take the view that they should be its costs in the account, without any such reduction as is referred to in the Registrar’s costs order made this day.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate:
Dated: 29 October 2010
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