Cumner v Bird - [2018] VSC 443

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2018 00147

VICTOR LESLIE CUMNER	Plaintiff
v
JOHN BIRD	First Defendant
SHARON BIRD	Second Defendant
JSB EQUIPMENT PTY LTD (ACN 093 740 768)	Third Defendant

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JUDICIAL REGISTRAR:	Matthews JR
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2018
DATE OF RULING:	17 August 2018
CASE MAY BE CITED AS:	Cumner v Bird & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 443

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PRACTICE AND PROCEDURE – Summary judgment – Defendant admits debt – Civil Procedure Act 2010 (Vic), s 61 – Application for summary judgment allowed.

PRACTICE AND PROCEDURE – Interest on judgment sum – Claim by successful plaintiff for entitlement to be paid interest under the Penalty Interest Act 1983 (Vic) – Supreme Court Act 1986 (Vic), s 58 – Whether a statutory demand constitutes a ‘demand for payment’ –Whether demand need be served on all parties – Whether ‘good cause to the contrary’ shown for not ordering interest from earliest proper demand – Whether four and a half year delay between demand and issuing proceedings constitutes ‘good cause to the contrary’ – Interest period reduced – Whether interest rate should be reduced – Interest rate not reduced.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Corr, solicitor	CBL Business Lawyers, as town agent for Legend Legal Group
For the Defendants	Mr M A Black	Sharrock Pitman

JUDICIAL REGISTRAR:

Introduction

By summons filed 25 May 2018, the plaintiff applies for summary judgment against the defendants (‘Application’) pursuant to s 61 of the Civil Procedure Act 2010 (Vic) (‘CPA’).[1]
[1]By order made on the Court’s own motion, the Application was referred to me for hearing and determination, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

The plaintiff’s application is supported by two affidavits affirmed by the plaintiff, one on 28 March 2018 (‘First Affidavit’) and a second on 24 May 2018 (‘Second Affidavit’). The plaintiff also relies on an affidavit affirmed on 6 April 2018 by Amira Naomi Ward. Ms Ward is a solicitor in the employ of Legend Legal Group, solicitors for the plaintiff.

This proceeding concerns a debt said to be owed to the plaintiff by the defendants in the amount of $464,372 (‘Debt’).[2] The plaintiff seeks orders for the payment of the Debt, along with interest. The plaintiff claims interest on the Debt pursuant to the terms of a deed of settlement, release and discharge dated 18 January 2012 (‘Deed’),[3] whereby interest is said to accrue, if payments due under the Deed are not made on or before their due date, at a rate of 3% per month on the amount outstanding at monthly rests, within 7 days of written demand being sent to the defendants (‘Contractual Interest Claim’).[4] Alternatively, interest is claimed on the Debt pursuant to s 58 of the Supreme Court Act 1958 (‘Act’) at…

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 Cumner v Bird

Details

AGLC: Cumner v Bird [2018] VSC 443
Case: [2018] VSC 443
Decision Date: 17 August 2018

CaseChat Overview and Summary

Cumner brought an action against Bird, seeking summary judgment for a debt that Bird had admitted to owing. The case was heard in the Supreme Court of Victoria. Bird had not contested the debt but argued that the judgment sum should not include interest. The court had to decide whether a statutory demand constituted a 'demand for payment' under the Penalty Interest Act 1983 (Vic). Additionally, the court needed to determine if the demand needed to be served on all parties, and whether the four and a half year delay between the demand and the issuing of proceedings constituted 'good cause to the contrary' for not ordering interest from the earliest proper demand. Lastly, the court had to decide whether the interest rate should be reduced.

The court held that a statutory demand constituted a 'demand for payment' and it was not necessary to serve the demand on all parties. The court found that the four and a half year delay between the demand and the issuing of proceedings did not constitute 'good cause to the contrary' for not ordering interest from the earliest proper demand. However, the court reduced the period from which interest would be payable to the date the proceedings were issued. The court found that there was no 'good cause to the contrary' for not ordering interest from the date of judgment and that the interest rate should not be reduced.

The court ordered Bird to pay Cumner the amount of the debt, plus interest from the date of judgment at the prescribed rate. The court also ordered Bird to pay Cumner's costs of the application for summary judgment and the proceedings up to the date of judgment.

Orders