Currabubula Holdings & Paola Holdings v State Bank of NSW

[1999] NSWSC 535

Reported Decision: [1999] Aust Torts Reports 81-511

New South Wales

Supreme Court

CITATION:	Currabubula Holdings & Paola Holdings v State Bank of NSW [1999] NSWSC 535 revised - 23/06/99
CURRENT JURISDICTION:	Equity Division - Commercial List
FILE NUMBER(S):	50268 of 1995
HEARING DATE(S):	3 May 1999
JUDGMENT DATE:	3 May 1999
PARTIES :	Currabubula Holdings Pty Limited (First Plaintiff) Paola Holdings Pty Limited (Second Plaintiff) State Bank of New South Wales Limited (Defendant)
JUDGMENT OF:	Einstein J at 1

COUNSEL :	Plaintiffs: D.E.J. Ryan Defendant: R.B.S. Macfarlan QC and C.M. Harris
SOLICITORS:	Plaintiffs: Gadens Lawyers Defendant: Mallesons Stephen Jaques
CATCHWORDS:	Defamation - Bank statements bearing notation ‘in liq’ - Imputations that customer insolvent and that liquidator appointed to customer - Damages - General principles - Unusual circumstances - No proof of special damage as a result of defamation in respect of which plaintiff sues - Trading company entitled to recover damages in respect of injury to its reputation as such without proof of loss - Damages to be assessed ‘at large’ - Entitlement of company to recover damages in respect of injury to its trade and goodwill dependent upon proof of damage - Restricted mode of pleading imputations - One group member sues in respect of the publishing on particular dates of bank statements issued to it bearing ‘in liq’ notation when, as part of the group, such group member first suffers damage in respect of which it does not sue, on earlier dates when similar bank statements are issued to other group members - Failure of plaintiff and of any other group member and of group as a whole to sue in defamation seeking to plead imputations to the effect that upon publication of any bank statements to any group member, the notations conveyed that the whole group was insolvent, or that specified group members were insolvent, or that a liquidator had been appointed to the group, or that a liquidator had been appointed to specified group companies, or that the group businesses were conducted badly or inefficiently, or that all or specified group companies conducted their businesses badly or inefficiently.; Damages - Quantum ; Interest - Claim to interest charges unnecessarily incurred pursuant to breach of contract - Proper measure of interest a question of fact - No factual basis for allowing an award of compound interest.; Costs - Principles - Costs follow the event - First Plaintiff successful in establishing defendant’s liability in relation to the contract and defamation claims - Whether the second unsuccessful plaintiff ought to pay the defendant’s costs in relation to its claim.
ACTS CITED:	Supreme Court Act s 94
CASES CITED:	ABC v Comalco (1986) 12 FCR 510 Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 Cassell & Co Ltd v Broome [1972] AC 1027 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1844] 1 QB 133
DECISION:	Orders made in terms of paragraphs 1, 2, 3 and 4 of the short minutes of order as follows:; 1. The defendant pay to the first plaintiff the amount of $1,748,278.20 calculated in accordance with Annexure A to these orders.; 2. The costs of the application and hearing before His Honour Mr Justice Hunter referred to in His Honour's judgment of 29 September 1997 be costs of the proceedings.; 3. In addition to any previous orders for costs made in favour of the first plaintiff, the defendant pay to the first plaintiff, 90% of the first pliantiff's costs of the proceedings as assessed or agreed.; 4. The second plaintiff pay to the defendant, 20% of the defendant's costs of the proceedings as assessed or agreed.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION - COMMERCIAL LIST

EINSTEIN J

Monday 3 May 1999- ex tempore
Revised 7 June 1999

050268/95 - CURRABUBULA HOLDINGS PTY LIMITED and PAOLA HOLDINGS PTY LTD v STATE BANK OF NEW SOUTH WALES LIMITED

JUDGMENT

1    HIS HONOUR: In paragraph 1124 of the judgment delivered on 30 March 1999 the Court indicated that the proceedings would be re-listed for further submissions in relation to any specific claims which either party contended had not yet been dealt with, such as interest, including claims for interest charges unnecessarily incurred, for submissions in relation to costs and for the making of final orders. Paragraph 1072 had reserved for further submissions the question of the precise relief to be granted in respect of the defamation cause of action in the light of the judgment. 2    Both parties have now addressed submissions dealing with:

(a) damages for defamation;
(b) quantum of damages;
(c) interest;
(d) costs .

3    I deal with these matters seriatim.

DAMAGES FOR DEFAMATION

4    In the judgment at paragraph 1065 the confined mode of pleading the imputations was noted as leading to the holding that Currabubula was defamed only upon the publishing of the Bank statements in respect of itself. 5    The difficulties posed for the Court in determining what damages Currabubula alone is entitled to recover in respect of those Bank statements published on and after 21 February 1990 and bearing the offensive "in liq" notations, were referred to in the judgment at paragraph 1071. 6    The fact that no specific evidence had been devoted to examining what loss flowed from the publishing of the Currabubula statements, as opposed to the detailed evidence of what followed the publishing of the earlier Bank statements, was referred to in the judgement at paragraph 1067. 7    The parties have now addressed detailed submissions on the matters reserved for further submission in the judgment at paragraph 1072. 8    Currabubula submits that the Court should consider the context of the publications as part of a continuum. The submission is that prior to the specific publication relating to Currabubula, it cannot be said that all the damage had already been done and that in consequence, the sending of the statements to Currabubula had no independent effect. Currabubula submits that to so argue is to incorrectly suggest that the total damage to Currabubula was done upon the sending of the first Bank statement containing the notation to another member of the Group. Such an approach is said to fly in the face of what Currabubula contends was "the Court's determination...that the matter cannot be viewed in isolation". [Submissions 14 April 1999 paragraph 19] 9    Currabubula then submits as follows:-

"(1) The proper analysis is that each offending publication to the Group companies reflected upon Currabubula as suggested at paragraph 1065 of the judgment and affected Currabubula's reputation and goodwill. The effect upon Currabubula would depend it is submitted, upon the company to which the notation relates. It is submitted that at the relevant time there were only two companies in the Group which had any real reputation and income earning ability, namely NRS and Currabubula.
(2) The effect of the defamatory statement to Currabubula was that, to the greater community, the Bank had withdrawn support for the entire Group including Currabubula Holdings (judgment paragraph 806) and that it was no longer viable.
(3) The defamation took out of the hands of Currabubula the effective control of its affairs (judgment paragraph 1015). Any remnants of Currabubula's ability to argue that it was separate and distinct from the problems of the Group because of its previous reputation as a solid land holding company, was effectively destroyed by the publication of the defamatory statement.
(4) This led as a matter of fact as found by the Court to an inability of Currabubula and the Group to regain the good offices of suppliers and creditors and took out of the hands of the Group and Currabubula, the ability to deal in any manner with creditors whose confidence was required to be regained. [Judgment paragraph 809].
(5) There is evidence referred to in the judgment of an inability to refinance from April 1990 and evidence of Mr Paola's attempts to refinance.
(6) The Court was at pains to make it clear that the controlling mind of Currabubula and in fact the Group was Tony Paola. A considerable part of the summary of the facts at the beginning of the judgment was dedicated to recounting the Bank's view of what kind of entrepreneur Tony Paola was and the credit rating assigned to the Group during their relationship.
(7) The Court has accepted that the fortunes of the Group enterprises were linked to Tony Paola's ability and business acumen to sell assets to repay debt when necessary.
(8) The effect of the defamation was to take control of the assets of the Group out of its hands and to take away also Tony Paola's ability to use and leverage the company's assets to invest or raise further finance". [Paragraph 952]. To use the Court's phrase, after the imputation was made, the company could not through its director and controller `put the genie back in the bottle' (paragraph 809).
(9) The publication of the documents affected the staff's own standing and reputation in the community (paragraph 813).
(10) The matter was not minor, insignificant or minimal (paragraph 820).
(11) It was accepted by the Court that the support of its bankers to a going concern may as a general matter be regarded as one of the first matters of interest to those dealing with such a concern (paragraph 820).
(12) The Court held that as a matter of contract, the value of NRS was diminished by the Bank's breach which gave rights to Currabubula to sue for that breach.
(13) The Court held that the Bank always accepted that its exposure to the Group was more than adequately protected by the security cover given by Currabubula through its land holding. It was also accepted that the Group was prepared to sell assets when required to meet commitments.
(14) As at April 1990, the Group owed $8,500,000 all of which was secured by Currabubula's land holding.
(15) It is submitted that in light of the above, the harm to Currabubula's reputation translated to an effective liquidation of Currabubula's assets to satisfy the debts of the Group and to take away any business credibility held by Currabubula to re-finance the debt. It lost all ability to be pro-active (paragraph 809).
(16) The purpose of an award of damages to Currabubula arising from the defamation is to compensate it for the effects of the defamatory statements. Whilst Currabubula cannot of course, recover damages for injured feelings see Lewis v Daily Telegraph Ltd [1964] AC 234; The Royal Society for the Prevention of Cruelty to Animals (NSW) v 2KY Broadcasters Pty Ltd (Unreported, Supreme Court of New South Wales, Hunt J, 9 December 1988)), it is entitled instead to monetary compensation to repair the injury caused to its business or trading reputation and its goodwill (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, at 60; Barnes & Co v Sharpe (1910) 11 CLR 462; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 particularly at 586, 599-603.
(17) A corporation can recover damages for injury to its business reputation without proof of any specific loss of business; South Hetton Coal Co v North-Eastern News Association Ltd [1894] 1 QB 133.. As Lord Esher MR observed in that case:-
Statements may be made with regard to their mode of carrying on business, such as lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so, the law will be the same in their case as in that of an individual, and the statement will be libellous. Then, if the case be one of libel - whether on a person, firm or a company - the law is that damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case". (See also Lewis, at 262, Barnes at 473-474, 478-479 and 485
(18) Further in such cases damage arising from the publication is presumed Ratcliffe v Evans [1892] 2 QB 524 at 530.
(19) In the present case, for the reasons found by the Court and referred to above, the defamation was a serious one that affected the fortunes of the entire Group and those of Currabubula. The starting point is to compare the fortunes of Currabubula before and after the defamation took place.
(20) it is submitted that the loss to Currabubula's reputation can be measured in one fo the following ways:
(I) The loss of the chance to obtain a loan. It should be inferred that Currabubula could have re-financed had it reputation not been harmed - namely its loss is the inability to have access to a facility of $8,500,000 as at February 1990.
(II) The value of the land holdings actually sold by Currabubula which it would otherwise not have to have sold to repay the debt - namely the sale proceeds of Gabo ($3,500,000), Durhambone West ($1,304,000) and the re-financing to the Commonwealth Bank in June 1992 ($1,200,000) which totals $6,004,000.
(III) As for (II) above with the addition of the value of Durhambone East ($4,300,000) - which totals $10,304,000.
(IV) The reduction in Currabubula's net asset position from 30 June 1989 to 30 June 1992 by which time the relationship between the Bank and Currabubula came to an end - the evidence (vol 7 of PX1) shows the net asset position of Currabubula at 30 June 1989 was $19,629,643, at 30 June 1990 $18,648,786, at 30 June 1991 $9,800,828 and at 30 June 1992 $9,072,972. The plaintiff submits that Currabubula's reputation as a corporation is equal to at least its net asset position from time to time as that figure measures the entity's total value excluding debts and other obligations. The combined effect of these amounts is to reflect a reduction in the company's net asset position of $10,556,716.
(V) As an alternative to (IV) above, it is submitted that the reduction in Currabubula's reputation (the reduction in the net asset position) was caused as a result of the statement being made about Currabubula and about individual companies in the Group which reflected badly upon Currabubula. In this case, it is submitted the Court can apportion the reduction in the value of Currabubula's reputation between the effect of the publication directly to Currabubula and the effect as a result of the reflection from other companies in the Group. The plaintiff submits that as at February 1990, the only companies of the Group with any real commercial presence were Currabubula as the land holder and Currabubula as the pastoral land holding company. Accordingly any apportionment should be for a maximum of 50 per cent (50%).
(VI) The value of an opportunity lost. The only real opportunity lost was the purchase of shares in Ubix. In the absence of a cogent reason from the defendant why such a thing would not have occurred but for a lack of funds, then the Court is entitled to and should consider the likelihood of such an investment being made and the likelihood of a damage claim being mounted. The plaintiff submits such an opportunity was real and in fact lost. The defendants have assessed the value of the investment at NZ$14,640,800 at the relevant time".
(21) The loss suffered by Currabubula to its reputation by reason of the defamation is directly linked to the reduction of its asset holdings. It is wrong and too simplistic to say that the sale by Currabubula of its assets to reduce debt was simply the replacing of an asset with a lower liability. This ignores the reputation of Currabubula which had been found and acknowledged by the bank as being a rural land holding which had "blossomed" (judgment paragraph 107), generated after tax net profit of $2,100,000 (judgment paragraph 175) and provided 2.79 times security cover to its loans (paragraph 174). It was the vehicle underpinning the Group and was the vehicle to realise the entrepreneurial plans to leverage from and expand its assets and fortunes from the strategic holding and disposal of its assets".

10    Currabubula also addressed the following submissions in support of its suggested reputation up until February 1990:-

"(a) As at August 1987 it was recorded by the Bank that the attraction of Mr and Mrs Paola to their rural operations had seen their rural holdings "blossom" into a livestock and pastoral operation under the name of ‘Currabubula Station’ with a combined area of 27,000 hectares (paragraph 107).
(b) The bank was not concerned with its exposure position because of the extent of its security (paragraph 146).
(c) By February 1989 the bank enjoyed a security cover of 2.79 times the debt upon a valuation of $16,341,253 (paragraph 174).
(d) The net profit of Currabubula after tax for the year ended 30 June 1988 was $2,100,000 (paragraph 175).
(e) The bank expressed comfort in its security (paragraph 182).
(f) It was being proposed in about June 1989 that from this base, the operations would be floated (paragraph 207).
(g) By October 1989 the Group had three areas of income, namely, the fax business, the rural operations of NRS and the pastoral operations conducted on Currabubula's property.
(h) The objective as at January 1990 was to reduce total bank debt to $5,000,000 (paragraph 382).
(i) The Group's revenue base at January 1990 was substantially reliant on the properties (paragraph 383) which were all owned by Currabubula. The plaintiff submits it can be inferred that Currabubula on its own from its own properties could support a loan up to about $5,000.000."

11    Currabubula submits that the significance of the Court's findings is to place the defamatory statements as held to have been published into an overall timeline. It is submitted in this regard that at the time the statements were made the facts were:-

“(a) The current accounts had been ‘frozen’.
(b) News was getting about that the Group and/or Mr Paola were "going bust".
(c) Nothing was specifically said at the time about Currabubula. That is, though Currabubula was affected by the overall conduct of the Bank and the overall perception of the Group as described at judgment paragraph 806, no specific statement had been said of it.
(d) Bank statements had been sent in relation to other companies in the Group with the defamatory notation.
(e) Currabubula still owned all its property and this fact would have been known in the community.
(f) Cheques drawn by Currabubula and the Group companies had been dishonoured.

12    Hence, Currabubula submits that the sending of the Bank statements to Currabubula itself with the defamatory notation was at the time a continuation of the Bank's earlier conduct in the circumstances. 13    The Bank takes issue with any suggestion that Currabubula is entitled to obtain damages in respect of defamation of the "Group" and/or of companies in the Group otherwise than itself. The submission is that "Currabubula is only entitled to obtain damages in respect of the damage it suffered". [Bank submissions 23 April 1999 paragraph 1] 14    The Bank then submits:-

1. That Currabubula cannot recover damages for injured feelings but only for injury to its business or trading reputation and its goodwill.
2. That at the time of the publications, Currabubula carried on no business.
3. That as Currabubula was not trading, its business or trading reputation or goodwill could not be adversely affected.

15    The Bank further submits that there is no evidence of Currabubula having suffered any "special damage" as a result of the defamation - that is, that there is no evidence of any identifiable financial loss suffered by Currabubula. 16    The Bank further submits as follows:-

"1. (a) In paragraph 23 of its Submissions Currabubula refers to the finding that the Bank's actions prevented the "Group" from being able to "regain the good offices...of . . . suppliers of creditors..." (paragraph 809 of the Judgment). (It must be noted however that the Judgment recognises that part of the cause of this difficulty were the dishonoured cheques and the ‘freezing letter’ - it was not, by any means, caused solely by the defamation and certainly not by the alleged defamations of Currabubula constituted by the bank statements of 21, 23, 28 February and 7, 14, 21, 28 March, these being well after the critical days of 15 and 16 February and the start of the extensive and justified dishonour of cheques by the bank).
(b) Mrs Hamblin's evidence was to the effect that that:-
(i) The suppliers/creditors who made contact with her did so because they had received dishonoured cheques, they did not say anything about bank statements. [T298.40-50]
(ii) They were making inquiries concerning NRS. [T289.10 and 296-298]
(iii) A neighbour said to her that Mr Paola had "gone bust". [T292.10]
(c) Mr Paola's evidence was also of discussions concerning NRS [Para 61 to 74 statement of 16 October 1996 and T50.55 - 60.39]
There was no evidence that any person, other than possibly the employees of NRS, had formed an adverse opinion as to Currabubula's credit because of the defamation. There was no evidence at all of publication of the Currabubula bank statements or their contents to anyone outside the Group.
(d) There was no evidence of:
(i) There being any "suppliers" to Currabubula;
(ii) There being any difficulties with suppliers or creditors of Currabubula
and, having regard to the fact that Currabubula did not trade, it ought be inferred that its only creditors were secured creditors - such as the Bank and other creditors whose dealings with Currabubula would be unaffected by the defamation - for example the Local Council which might be owed Council rates.
(e) There is no evidence which would justify an award of more than nominal damages for the defamation.
(f) There is certainly no evidence whatsoever to support the Plaintiff's contention in paragraph 34 of the Submissions that the defamation caused an "effective liquidation" of Currabubula".
"2. The activity and conversations regarding the Group's solvency occurred on 16 February 1990 (paragraph 492 to 514 of the Judgment). Mr Paola spoke to creditors "within days of 16 February" (paragraph 512). The first of the Currabubula "in liq" statements was not sent until 21 February and so was not the cause of the "damage" described by Mr Paola in his evidence. For the reasons set out in the preceding paragraph, the statements, the first of which was not sent until a week after the first cheques were dishonoured, were not the cause of the "damage" described by Mrs Hamblin either".
"3. Dealing specifically with assessment of damages referred to in paragraph 39 of the Plaintiff's Submissions:
(i) There is no evidence that Currabubula ever sought another loan, let alone that it refused another loan. There is no evidence upon which a conclusion could be reached that the loss of reputation caused by the defamation prevented it from being able to refinance.
(ii) and (iii) There is no causal connection between the defamation and the sale of the properties or the amounts received on the sale:
(a) Currabubula had decided to sell Durhambone months before the defamatory material was published (paragraph 947 judgment).
(b) Attempts to sell had taken place before the defamatory material was published (judgment paragraph 947).
(c) The reduction in value of the properties was caused by factors such as market uncertainty, rather than any loss of reputation of Currabubula (judgment paragraph 947).
(d) Durhambone West and Gabo were sold on 16 June 1994 and 30 August 1991 respectively long after the publication of the defamatory material, and at a time when its "effect" would have been spent.
(iv) and (v) There is no causal connection between the defamation and the reduction in Currabubula's net asset position. The reduction in net asset position occurred as a result of factors such as the drought, reduction in grain prices and wool prices, reduction in land values, guarantee obligations in relation to ABE Fax et cetera. [PX 824]
It must not be forgotten that the accounts prepared by Currabubula are not, in any event reliable - its auditor qualified the accounts because significant debts or contingent debts were excluded. [PX 824]
(vi) There is no causal connection between the loss of the opportunity to purchase Ubix's shares and the defamation.
4. Until the last day of Submissions, the only case the Bank had to meet was an allegation that the defamation was contained in one bank statement of 14 February. On the last day of the Submissions, Currabubula was given leave to withdraw that allegation and to tender bank statements that were issued to Currabubula on 21, 23, 28 February and 7, 14, 21 and 28 March 1990 which contained the reference to `in liq’.
5. The first ‘in liq’ statement sent to Currabubula was sent a number of days after the first ‘in liq’ statements were issued. Schedule 2 to the Further Amended Summons identifies an ‘in liq’ statement having been sent to Pyojit Pty Limited on 13 February 1990 and three ‘in liq’ statements having been sent to NRS on 16 February. There was no complaint by Mr Paola or anybody in relation to these earlier statements notwithstanding that, if complaint had been made, the sending of the ‘in liq’ statements to Currabubula would have been averted.
6. Furthermore, it appears that the Bank was sending ‘in liq’ statements to Currabubula over a period of six weeks. There was no complaint during this period by Mr Paola or anybody to the Bank concerning the Currabubula statements, or indeed in relation to any of the bank statements noting ‘in liq’, and any damage which Currabubula sustained could have been significantly reduced if Currabubula had notified the Bank of the difficulties that the ‘in liq’ notation was causing soon after the first or second of the bank statements were received.
7. The fact that no-one from the Paola Group took the trouble to ask for the form of statements to be changed is strong evidence that the sending of further statements with the ‘in liq’ reference on them was regarded as of no significance, even if the initial one sent to NRS had been.’

17    Currabubula in reply, submits as follows:-

‘1. The Defendant seeks to categorise the Plaintiff's submissions as claiming compensation for defamation of the Corporate Group of which Currabubula was a member. That is not, however, correct. What is sought are damages for defamation of Currabubula, albeit in the context where Currabubula was part of a trading group and had commercial interests of its own which were affected by the defamation.
2. The Court recognised (paragraph 1068) that this matter cannot be looked at in isolation. There is a finding in any event that Currabubula itself suffered loss (paragraph 1070).
3. It is incorrect to say that Currabubula carried on no business. . . . A more realistic characterisation is that Currabubula conducted the farming businesses which took place on its property. Whilst there was some evidence of an intention to conduct such operations through ABE Holdings Pty Limited (judgment paragraph 329, 330), there is no suggestion that the operations were conducted pursuant to any binding agreement which prevented Currabubula from having the benefit of their operations or such operations being, in substance, those of Currabubula.
4. It was simply a convenient way of organising the Group's business to have such operations conducted through ABE Holdings, to the extent that they were at all.
5. The Bank submits that Currabubula did not trade and thus its business or trading reputation or goodwill could [sic]be affected. This is quite an unrealistic view of Currabubula's role in the Group. Similarly the submissions made in paragraph 4 of the Bank's submissions depend upon Currabubula not being a trading entity, and thus not having any suppliers or creditors with whom it could have any difficulties. That submission also attempts to ignore the fact that news of the problems of the Group, which included Currabubula spread quickly throughout the community.
6. The difficulties in identifying with precision what financial loss was caused by the defamation should not prevent the Court from awarding more than nominal damages.
7. The submission in . . . the Bank's submissions attempts to remove the publication of the Currabubula ‘in liq’ statement from the causal arena. This should not be permitted. The delivery of the statements to companies in the Group, and to Currabubula, were a cause of the subsequent problems of the Group, including those of Currabubula.
8. It is not the point that there may have been no complaint by Mr Paola about the sending of the statements. Quite clearly, on the totality of the evidence, the delivery of the statement was a very serious blow to Mr Paola and his Group and could not be described as being trivial in content or effect. There is no evidence to suggest that the Bank, if asked, would have stopped sending out the ‘in liq’ statement. In any event if that is relevant since there was no duty to ask the Bank, and it is not a defence to the Bank's conduct to assert, as a hypothesis, that it would have so acted.

18    The plaintiff's further submissions in reply, dated 2 May 1999, included the following:

‘1. In response to paragraph 2 of the defendant’s submissions, the nature of Currabubula’s business is summarised at par 207 and 208 of the judgment by the Bank’s officer Mr Booth agreeing that Mr Paola, the plaintiff’s principal “was constantly doing what he could to take advantage of business opportunities … and that involved … for one thing the buying and selling of assets”.
2. Currabubula’s role in the group was on any view, to hold the group’s real property and where and when necessary to buy and sell such assets.
3. The evidence is that it was a common practice of Currabubula to use vendor finance funding to purchase and trade such assets (pars 591 and 207).
4. The defamatory statement did harm Currabubula’s ability to utilise this form of funding as evidenced by the attempts to finance the purchase of the Ubix shares and the fact that suppliers put the group on cash only terms.
5. It is common ground that the value of the Group and its constituent companies constituted, as a whole, a substantial enterprise. Of that group the primary company which held the primary securities was Currabubula which held net assets at 30 June 1989 of $19,629,643.00. It is unrealistic in all the circumstances to say that once it has been found a defamatory statement has been made and to find that the net assets of that company had fallen in June 1992 to $9,072,972.00 to not conclude that some part of that reduction was not attributable to the defamatory statement.’


DEALING WITH THE DEFAMATION ISSUE

THE ‘NON-TRADING’ ISSUE

19    Currabubula was at all material times the owner of very substantial rural properties. The banking summary set out at judgment paragraph 108 referred to the Paola's interest in farming properties as ‘having blossomed into livestock and pastoral production under the name “Currabubula Station”,’ to the properties as situated at Collarenebri, Tamworth and Narrabri and to the properties as having a combined area of over 27,000 hectares. 20    At judgment paragraph 178, reference was made to Mr Booth's acceptance under cross-examination that to his perception, the importance of Currabubula Holdings was that it owned the rural properties in the Group and to the significance of these in terms of the Bank’s securities. 21    Currabubula was at all material times clearly an integral part of the Paola Group and generally known to be such. It held one third of the issued shares in Paola Holdings which together with ABE Holdings (following a Group restructure) controlled the operating entities in the Group. The restructure (referred to in judgment at paragraphs 93, 242, 325 and 326) involved ABE Holdings taking over the pastoral operations from Currabubula Holdings from 1 July 1989. 22    I accept as correct Currabubula's submissions that the decision to permit ABE Holdings to take over the management of the properties in question involved no more than a convenient mode, capable of being later reversed, of reorganising a section of the Group's business interests. 23    I reject the Bank's submission that as at the date of the publishing of the Currabubula Bank statements bearing the ‘in liq’ notation, the restructuring to which I have referred, meant that the goodwill of Currabubula could not be adversely affected. 24    The fact is that Currabubula was, at the time the Bank statements were published, a company which had for some years owned and managed very extensive rural holdings as part of a closely held group of companies with diverse interests. The name ‘Currabubula Station’ would have been widely known. Currabubula had a reputation as a solid land holding company. By January 1990 the Group's revenue base was substantially reliant on the properties (judgement paragraph 383). The fact that Currabubula's operations were, at the time when the Bank statements were published, by inter-group arrangement being conducted through an associated group company in which Currabubula was an indirect intermediate owner by its joint shareholding in Paola Holdings, does not mean that Currabubula was an empty non-trading shell. To the contrary, Currabubula remained the pivotal land holding company in the Group, able at a moment's notice, by further Group reorganisation, to recommence its previous control and management of the rural operations being conducted upon its property. And even outside such Group reorganisation, it would qua its legal interest in its properties, have had relevant dealings with numerous third parties, including creditors such as the Bank. It was far removed from the example posited by Pincus J in ABC v Comalco (1986) 12 FCR 510 at 602 of an incorporated charity not engaged in any commercial venture and which receives no income by way of contributions (being permanently endowed at the outset), which is defamed. Pincus J considered that such an artificial entity was incapable of suffering loss for which it could recover damages. 25 In any event, the Bank’s submissions overlook the fact that a corporation may recover in respect of injury to its reputation as such, in contra-distinction to injury to its trade reputation and goodwill. In Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 Mahoney JA, as his Honour then was, said at 254 to 256:-

‘INJURY TO THE COMPANY'S REPUTATION AS SUCH
There are two points which are relevant in this regard: first, that damages may be awarded to a trading corporation for injury to its reputation as such; and, second, that the basis upon which such damages are calculated differs from that on which damages are calculated for injuries of the other kinds to which I have referred. It is, of course, clear that damages may be awarded to an individual for injury to his reputation. But it is necessary to have in mind that reputation as used in the law of defamation, may refer to more than one thing; and in my opinion the basis for the calculation of damages in respect of injury to each of these things may be different.
"Reputation" may, in relation to an individual, refer to what may more accurately be described as his trade reputation, his goodwill or the like. This reputation as applied to an architect may refer inter alia to that about him which will be relevant in relation to the income derived by him in so far as it will be apt to induce clients to resort to him. But in relation to an individual the term may refer to his standing, to the regard paid to him in the community. I do not mean that this is irrelevant to his income earning capacity. But reputation in this sense, to which I shall refer as "reputation as such " may exist, and damages may be awarded for injury done to it even if the individual in question is not involved in any income earning activity.
Damages for injury to reputation as such are in my opinion different in nature from, and are calculated upon a different basis (and require different evidence) from damages for the other kinds of injuries caused by defamatory material. Damages for injury to reputation as such are in the nature of a solatium; they are not in the ordinary sense, restitution. I would with respect adopt as correct the statement of law made in this regard by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [(1965) 66 SR (NSW) 223 at 150]. His Honour said:
"When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so-called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.”
In Cassell & Co Ltd v Broome [1972] AC 1027 at 1071, the Lord Chancellor, Lord Hailsham of St Marylebone, adopted a similar principle and cited with approval portion of the passage to which I have referred. The passage has been accepted as stating the law by the full court of the Supreme Court of Victoria, David Syme and Co Ltd v Mather [1977] VR 516 at 524.
It is, in my opinion, in this sense that damages [in] defamation are said to be "at large". The tribunal is allowed to award what, on proper community standards, is the proper solatium to a man whose reputation as such has been injured. In the assessment of that solatium evidence of actual monetary loss is not essential and, in the strict sense, it may perhaps not be relevant. In so far as actual monetary loss is to be taken into account, that for which the damages are awarded may, I think, best be seen as something other than damage to reputation as such. These distinctions are fine, but they are in my opinion, significant in considering what evidence is necessary to establish damage and what damage may be inferred and compensated for upon the basis of particular evidence.
It is, in my opinion, in accordance with principle to accept that a trading corporation may have such a reputation and may be awarded damages for injury to it. It appears well accepted that damages may be awarded to a non-trading corporation for injury to reputation as such, see Bognor Regis Urban District Council v Campion [1972] 2 QB 169; and the cases there referred to, see also Halsbury's Laws of England, 4th edition vol 28, p 14 paragraph 25. In such cases, the damages were not awarded for injury to assets or loss of income, that was not the basis on which the claim for damages was made.
Thus, in National Union of General and Municipal Workers v Gillian [1946] 1 KB 81 damages were awarded to a trade union. Both Scott LJ [at 87] and Uthwatt J [at 88] appeared to recognize that a trading corporation could have a reputation of the kind for which, in the case of the union, damages might be awarded. Uthwatt J said: “The social duty so to conduct the affairs of the union as not to invite well-founded criticism is hardly forwarded by the denial of the right to seek redress for an unjustified disparagement of its activities.” The union was not injured in its assets or income and, perhaps, the more recent expressions such as “corporate image” may be seen as indicating the nature of that for which the damages were there given.
There is, in my opinion, nothing in the law which is inconsistent with the recognition that a company may have such a reputation, that it may be injured, and that damages may be awarded for that injury. I do not think that general statements as to the position of a corporation, and what may be recovered by it: see, eg, Lewis v Daily Telegraph Ltd [1964] AC 234 at 262, should be seen as indicating a contrary view. Such injury falls within “harm suffered by” a plaintiff, within s 46 of the Defamation Act.
I think it is to be taken that the jury included, in the awards made by them, damages for injury to the company’s reputation as such and, therefore, in considering the quantum of the awards, it is necessary to consider how such damages could have increased such award as it would otherwise have been proper to make.
The company claimed for injury to its “reputation”. There was no substantial evidence directed specifically to showing the nature or extent of the company’s reputation; but it may be inferred from what was said about Mr Andrews and his reputation, and about the relationship he had to the company. What was apt to be the effect of the publications upon the company’s reputation was left to inference. The jury was invited to infer that the company had shown a lack of care and/or competence in the design and the supervision of the construction of the building. It was required to assess the injury done by the publication made by each newspaper to that reputation and, in this regard, to award a solatium accordingly. Having regard to the nature of what was said, and the evidence of the various witnesses, I doubt that the award under this head alone could have gone a great distance towards justifying the total amount awarded.
(b) Injury to the company’s trade reputation and goodwill:
The trade reputation, goodwill, and the like (“goodwill”) of a company is an asset, and injury to it may be compensated by damages: Lewis v Daily Telegraph Ltd [1964] AC 254 at 262. Such injury may consist in depreciation in the value of the goodwill as an asset, in the reduction of the income which otherwise would have been derived from the use of it, or in a combination of both. No doubt, in the ordinary case, the depreciation in the value of the goodwill will be measured by the fall in the company’s relevant profits or super-profits; and care will, in assessing damages, need to be taken to avoid overlapping. Damages for injury to goodwill are, in my opinion, not “at large” in the sense in which damages for reputation as such are. If damages are to be awarded for such injury, the amount of injury must be appropriately established, and the tribunal must be appropriately satisfied of the extent of it. I shall return to this matter in dealing with the award of the damages for direct financial loss.’
[Emphasis added]

26    In the same passage his Honour continues to deal with injury to the second head, namely injury to the company's trade reputation and goodwill. 27    The underlying difficulty is to deal with a somewhat artificial position in this case. The Paola Group as a whole suffered damage by reason of the publishing over a period of weeks of the Bank statements bearing the offensive notations. The Group as a whole has not sought to sue in defamation. Only in respect of NRS and Pyojit were Bank statements bearing the notations published on 15 February 1990 Pyojit and on 16 February 1990 (NRS). 28    Neither NRS nor Pyojit have sued in defamation in relation to these Bank statements. Neither Currabubula, nor any other Group member, nor the Group as a whole, has sued in defamation seeking to plead imputations to the effect that upon the publication of any Bank statements to any Group member, the notations conveyed:

- that the whole Group was insolvent or
- that specified Group members were insolvent or
- that a liquidator had been appointed to the Group or
- that a liquidator had been appointed to specified Group companies or
- that the Group businesses were conducted badly or inefficiently or
- that all or specified Group companies conducted their businesses badly or inefficiently.

29    How then does the Court deal with the one Group member's defamation claim grounded upon the publishing only of the later Bank statements addressed to it, when it seems clear that, as part of the Group, it first suffered damage in respect of which it does not sue, on 15 and 16 February 1990. 30    As stated in judgment paragraph 1070, Currabubula suffered loss because the defamatory utterances in respect to it occurred at a time when news of the Group and/or Mr Paola ‘going bust’, was rapidly circulating and came to embrace Currabubula proper. 31    I reject the Bank's submission that the damages awarded to Currabubula qua its contract claim mean, in substance, that no loss can be recovered on the defamation claim. The latter cause of action is clearly distinct and Currabubula is entitled to recover in respect of damages for injury to its reputation as such. 32    I accept as correct, Currabubula's description of its claim as "damages for defamation of Currabubula, albeit in a context where Currabubula was part of a trading group and had commercial interests of its own which were affected by the defamation". [Submissions in reply paragraph 1] 33    At the same time, the following passage found at paragraph 1071 of the judgment must be taken into account: "Had the Bank statements relating to Currabubula been published on 15/16 February 1990 and had all Group companies in respect of whom similar Bank statements had been received on 15/16 February sued in defamation, the defamation case would have been a very different one". 34    As pointed out by Lord Esher MR in South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1844] 1 QB 133, a corporation can recover damages for injury to its business reputation without proof of any specific loss of business. [See excerpt recited in Currabubula's written submissions set out above]. 35 In Australian Defamation Law and Practice, Butterworths, 1990, by Tobin and Sexton, the following passage appears:-

‘Once the publication of defamatory matter is proved the law presumes damage except in cases of slander not actionable per se. A plaintiff is not required to prove that his reputation had in fact been damaged. He is entitled to rely on the presumption that some damage will inevitably be caused to his reputation by the publication of defamatory matter. Once a tribunal of fact finds for the plaintiff on liability, it must award damages even if only nominal damages. The infringement of the plaintiff's rights itself entitles him to damages.
"In all such cases the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff's rights and calls it general damage".’ (Ratcliffe v Evans [1892] 2 QB 524 at 528)
[At paragraph 2R, 005]

36    In Cassell & Co Ltdv Broome [1972] AC 1027 at 1072, Lord Hailsham referred to the term "damages are at large" as meaning only that "the whole process of assessing damages...is essentially a matter of impression and not addition". 37 The defamation was a serious one and occurred in the Bank's dealings with its customer. However, the fact that the statements in respect of which Currabubula sues, were only published during the middle of the week following February 15/16 (Thursday/Friday) is to my mind an extremely material fact. In my view Currabubula, in the absence of having proved that it suffered any special damage as a result of the defamation in respect of which it sues, and in the very unusual circumstances above referred to, is entitled to a damages award of $15,000.

CALCULATION OF QUANTUM OF DAMAGES

38    The Bank has sought to address submissions going to the calculation of the quantum of damages dealt with in the judgment. Although the plaintiff submitted that the Court was functus officio in respect of the issue, to my mind the leave reserved in the judgment covers such an issue as this. 39    The Bank points out that in paragraph 925 of the Judgment, the value of the NRS business at the time of its sale is found to have been $1.6 million and, the business having been sold for $691,000, it is concluded that the sale realised $909,000 less than the fair value of the business. The Bank points out that the business consisted of operations at four locations, namely Tamworth, Gunnedah, Narrabri and Moree. Also that only the first three operations were sold in June 1990 as the Moree business continued, being wound up in 1991. The Bank then submits that an amount of $75,000 had been received by the liquidator when he sold the plant, equipment and stock of the Moree branch. 40    The Bank then submits that the measure of loss caused by the Bank's breaches of contract should have been reduced by the above-described $75,000. 41    The Bank initially addressed submissions in support of the proposition that there were other appropriate deductions said not to have been taken into account in the holding that the measure of loss caused by the Bank's breach of contract was $909,000. The first of those matters was said to be costs of the sale of the business and expenses involved in its marketing. The Bank initially submitted that such costs ought to have been allowed for but were not allowed for. Subsequently the Bank determined not to press these submissions. 42    The Bank initially submitted that had the business been sold for its full value in June 1990, a significant part of the goodwill would have been subject to capital gains tax. In this regard, the Bank referred to paragraph 92 of the report of Mr Bryant/Mr Halligan which was referred to in the Judgment [paragraph 911] wherein Mr Bryant/Mr Halligan expressed the view that Mr Hardy should have taken into account the taxation consequences to NRS of realising a capital gain on the sale of its business. The Bank's submission was that the Court should assume, in the absence of the plaintiff having led evidence as to a lesser proportion being subject to capital gains tax, that the whole of the goodwill would have been subject to capital gains tax. The submission was that there ought be a further deduction of $325,260 (39 per cent of $834,000), representing the capital gains tax the plaintiff would have had to pay upon the sale of the business. Again this submission was later not pressed. 43    In the result, the Bank's submission is that the holding that the measure of loss caused by the Bank's breach of contract was $909,000, is appropriate to be revisited. The submission is that the actual value received on the sale of NRS's business is to be regarded as $834,000 ($909,000 minus $75,000). 44    The plaintiffs submitted that the Court was functus officio in relation to this issue. To my mind, the leave reserved to the Bank in the Judgment does extend to permit the Court to deal with a matter such as this. To my mind the Bank ought be permitted to raise the question of the asserted sale of plant, equipment and stock of the Moree branch to Currabubula Holdings for approximately $75,000. Mr Bryant/Mr Halligan in paragraph 91 of their report of April 1997, had used the words "if the sale did occur then the loss, if any, in respect of NRS should be reduced by $75,000)”. 45    It being accepted as I understand it by the plaintiffs, that the sale did occur, it seems to me the Bank has made good its proposition that the measure of loss caused by the Bank's breach of contract should be reduced by $75,000 so that the measure of loss becomes $834,000. 46    In consequence, the various schedules relied upon by Currabubula in support of its interest claims will be required to be amended in due course.

INTEREST

47    Currabubula in written submissions, put forward its claims to interest on four alternative bases. They are as follows:-

‘(a) Compound interest at Supreme Court rates from 1 June 1990 to date;
(b) Compound interest at the rates charged by the Bank from 1 June 1990 to 30 June 1992 and thereafter Supreme Court interest rate;
(c) Compound interest at the rates charged by the Bank from 1 June 1990 to 30 June 1992, compound interest for the period 1 July 1992 to 30 June 1993 at the rate charged by the Bank which re-financed Currabubula Holdings, and following 30 June 1993 interest at Supreme Court rates;
(d) Simple interest from 1 June 1990 to April 1999 at Supreme Court rates.’

48 A claim to interest charges unnecessarily incurred is pursued in relation to interest charged by the Bank upon the sum of $834,000. The claim is that such interest is to be calculated on the same basis as the Bank is said to have charged interest. This was initially said to have been compounded monthly and in arrears. Later, as I understood Mr Ryan during oral submissions, the Plaintiffs accepted that there was no evidence that the Bank, during the period 1 June 1990 through to 30 June 1992, charged anything otherwise than simple interest and that there was no evidence that the Commonwealth Development Bank during the period 1 July 1992 to 30 June 1993 charged anything otherwise than simple interest. 49 The claim put in alternative (d) addresses the alternative claim for interest, being simple interest at Supreme Court rates for the whole of the relevant period. 50 Currabubula also submitted that it was entitled to recover as a separate head of damages, interest pursuant to s 94 of the Supreme Court Act on the amount of damages held to have been $834,000. However, Currabubula, as I understand it, now accepts that it cannot receive double recovery. 51 The Bank submits, as must be correct, that Currabubula is only able to claim interest because of the finding that it has a right to recover, as damages, the loss in the value of NRS. 52 Plainly, as the Bank submits, Currabubula cannot recover ‘interest unnecessarily incurred’, as well as interest under s 94 of the Supreme Court Act from June 1990 to date. 53    To my mind, and as I have indicated the Bank now accepting this to be the case, the Court is entitled to find on the evidence and/or to infer from the evidence, that Currabubula would have applied any additional funds available on the sale of NRS to further pay down the Bank's facility on 1 June 1990. 54    The Court referred in paragraph 382 of the Judgment to Mr Booth's summary of a meeting which he held with Mr Paola on 16 January 1990, in which summary Mr Booth stated that Mr Paola's strategy was to reduce Bank debt to less than $5,000,000 as soon as possible and that assets would be realised until this was achieved. In paragraph 926 of the Judgment the Court referred to the Bank's knowledge of the Group's plan first to sell the jet aircraft and next NRS. In Judgment paragraph 952, the Court set out sections of Mr Paola's evidence under cross-examination, including his evidence that by April 1990 he saw the Group getting itself into a wholly unacceptable financial position later in the year unless Durhambone could be sold quickly. In paragraph 956, the Court referred to Mr Paola having recognised that there was a pressing need to reduce the Group's indebtedness to the Bank both to honour the term of the facility which required the end of May reduction and also to alleviate the Group's over-stretched financial situation. The holding was that on the evidence, this was an over-stretched financial situation which in Mr Paola's personal view, was simply intolerable and had to be addressed. 55    In paragraph 959 the Judgment includes the following: "Even had the plaintiffs received the additional $909,000 upon the sale of NRS, that would have been far from achieving the reduction in Bank debt below $5,000,000 that in Mr Paola's view was necessary". 56    In those circumstances, to my mind, the interest question ought be decided upon the basis now conceded by the Bank, that Currabubula would have applied any additional funds available on the sale of NRS to further pay down the Bank's facility on 1 June 1990. 57    Turning now to the question of interest to be calculated, the plaintiff submitted in reply that it was not necessary in order to claim compound interest, that a specific claim for the same be made in the pleadings, and that the companies were trading companies that used and re-used capital as it became available to them. The plaintiff submitted that it was appropriate to award compound interest in such circumstances. 58    The Bank's submissions were as follows:-

‘The defendant submits that the proper measure of interest is that which accrues at the Supreme Court rates from 1 June 1990. Further the interest should be calculated on a “simple interest” basis - a claim for compound interest must be pleaded as part of the Plaintiff's case and supported with evidence and the Plaintiff did not do so here. The Defendant accepts the Plaintiff's calculations in Annexure D.
Even if Currabubula is entitled to make a claim for interest for "interest unnecessarily incurred", the proper measure is the interest accruing on the amount of $909,000 (assuming Currabubula is awarded damages for this amount) at the interest rate payable under the Bank's facility until the facility was paid out on 30 June 1992. There is no evidence that the Bank charged the Group compound interest during this time nor that in the period since 30 June 1992 the Plaintiff has had to pay compound interest and so Currabubula would not be entitled to be compensated on this basis. Furthermore there is no evidence that Currabubula as opposed to some other company in the Group paid the "interest unnecessarily incurred" and therefore no factual basis for an order allowing it to recover that interest’.

59    In Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Giles J at 364, made plain that a factual investigation into the loss suffered through being held out of the money is appropriate so that the plaintiff's loss is to be found as a fact and not assumed from a mere withholding of the money. The question of whether the Bank charged compound interest during the relevant period or whether the plaintiff had otherwise had to pay compound interest, remains therefore, one of fact. 60 The parties, as I have said, ultimately accepted that there was no evidence as to the amount of interest charged by the Commonwealth Development Bank, as I understood it, and the evidence being that the Bank charged only simple interest from 1 June 1990 to 30 June 1992. 61 In all of those circumstances, in my view, the appropriate interest award is that identified in the plaintiff’s alternative (b), subject only to this being simple interest, that is to say simple interest at the rate charged by the Bank from 1 June 1990 to 30 June 1992 and Supreme Court interest rates from 1 July 1992 to date. 62 In so far as the amount which had been claimed in alternative (b) is concerned, those figures had been on the basis of compound interest for the period 1 June 1990 to 30 June 1992. On that basis, and on the basis of simple interest rate claim thereafter and with an opening balance of $909,000 the claim had been to $2,643,107.52. The measure of loss caused by the Bank’s breach now being reduced, as I have earlier said to $834,000, and the appropriate interest rate being determined to be simple interest, it is necessary that the interest figures be recalculated on these bases. 63 The plaintiffs will be required to bring in a schedule setting out the correct figures for the altered claim which the plaintiffs have made out. 64 It remains then to deal with costs.

Costs

65    The plaintiffs submit as follows:-

‘ (a) There is no reason why the general rule as to costs should not apply in this case.

(b) Costs should follow the event.

(c) The plaintiff has been successful in establishing liability in respect to its defamation claim and contract claim. The defendant has been wholly unsuccessful in denying liability.

(d) There is no additional cost borne by the introduction of the second plaintiff as the costs involved in that part of the case relied upon and rested with the evidence and submissions adduced for the first plaintiff.

(e) Currabubula has been successful on its breach of contract claim. Paola Holdings was added to ensure that there was "no standing problem" and its addition has caused no additional costs that have been identified by the Bank.’

66    The Bank submitted that the plaintiffs should pay the Bank's costs in relation to the issues on which the plaintiff was unsuccessful:-

‘ (a) Paola Holdings was totally unsuccessful and should never have been joined as a party and ought pay the Bank's costs involved in the joinder.

(b) Currabubula should pay the Bank's costs in relation to the issues involving the sale of Durhambone and Gabo. These costs include the whole of Mr Spackman's fees.

(c) Currabubula should pay the Bank's costs in relation to Ubix. These costs include all of the fees of Mr Lorrimer and Mr Partridge and a significant part of the Arthur Anderson fees.

(d) Currabubula should pay that proportion of the Bank solicitors and counsel's fees as are attributable to.’
- valuation of the properties, the Ubix's shares, the deed of release, the assertion that Currabubula was entitled to take representative proceedings, the estoppel claim, any issues relating to Paola Holdings.

67    The Bank submitted that to the extent that the Bank is ordered to pay the plaintiff's costs in relation to the issues on which the plaintiff was unsuccessful, the Bank ought not be required to pay the proportion of the plaintiff's costs of its solicitor and counsel as referred to in paragraph (d) above. 68    In particular, it was submitted that a significant part of Mr Hardy's fees should be disallowed on the basis that they relate to the valuation of the properties or the Ubix shares. 69    To my mind, Currabubula, having substantially succeeded in establishing liability in respect of its contract and defamation cause of action it is entitled, subject to one consideration, to the benefit of the usual rule that costs follow the event. The matter to which I refer is the undoubted fact that Currabubula failed to establish liability in the Bank on a number of heads of damage. 70    Taking that matter into consideration, the appropriate order is, in my view, that the Bank pay 90 per cent of Currabubula Holdings' costs of the proceedings. 71    In relation to Paola Holdings, it has failed in establishing any causes of action on which it sued. However, it is fair to say that most of the costs of the Bank which were incurred in defending itself against the claims brought by Paola, were the very same costs as were incurred in its defence to Currabubula's claims. 72    Mr MacFarlan QC submitted, on behalf of the Bank, that the position with respect to Paola Holdings was that it simply did not succeed and as I understood the submission, that Paola Holdings should pay the Bank's costs of the proceedings or of the proceedings in so far as they involved Paola Holdings' claims. 73    The circumstances in which the Paola Group was joined were somewhat unusual. The question of locus remained a matter for decision of the trial judge - the matter is generally referred to in the Judgment. 74    Mr Ryan submitted that it was not appropriate to punish one group of plaintiffs in the present proceedings. The submission was that because one plaintiff is present in the proceedings to ensure that any standing problems are overcome, it is inappropriate to visit upon that unsuccessful plaintiff the costs of the proceedings and thereby to effectively deprive the successful plaintiff of its costs. Mr Ryan submitted that a qualification to this proposition was where the Court could identify substantial segments of the case which related to, and only to, the unsuccessfully joined plaintiff's suit. 75    Mr Ryan submitted that it was incorrect to view the case as one in which both plaintiffs substantially failed. Mr MacFarlan had submitted earlier that the appropriate way to view the proceedings was that a claim of $31.84 million had been particularised and a damages liability found in the order to which I have earlier referred in this judgment. Mr MacFarlan's submission was that in those circumstances, the plaintiffs had recovered something less than 3 per cent of their claim and that in perspective, this is an extreme case where the plaintiffs were effectively unsuccessful, having succeeded only in very small measure in relation to Currabubula alone. 76    Mr Ryan submitted that it was incorrect to view the case as one in which both plaintiffs substantially failed. He submitted that Currabubula had succeeded in its contract claim and in its defamation claim. I accept Mr Ryan's submission that the vast majority of the trial involved the question of whether the Bank had breached its contractual obligations and had defamed Currabubula. The parties engaged in each presenting a vigorous case, the plaintiffs in support of the proposition that the contract had been breached and that Currabubula had been defamed and the defendant negating those propositions. It seems to me, that it is simply not realistic to suggest that the case is to be properly viewed as one in respect of which the plaintiffs effectively failed. 77    Mr MacFarlan also addressed submissions suggesting that as part of the Court's discretion, the Court ought take into account the fact that the Group was in default at material times in such a way that the Bank had been entitled to terminate the facility were it minded to do so. 78    To my mind, that consideration requires to be very carefully addressed indeed. The Bank through the whole of the proceedings accepted that it relevantly, save for one particular alternative, had not sought to terminate the facility. The suggestion then, that the Group having been found to be in default in such a way that the Bank was entitled, had it been disposed to do, so to terminate the facility, should be taken into account in some special way in the exercise by the Court of its discretion, is therefore rejected. 79    To my mind, the appropriate order here is that Paola Holdings pay 20 per cent of the Bank's costs of the proceedings. 80    I direct that the plaintiffs bring in short minutes of order to deal with the final orders and unless there is something which either counsel suggest that I have forgotten about I would propose to adjourn.
81    I earlier referred to the plaintiff's objection on a functus officio basis, to the Court revisiting the question of calculation of quantum of damages. To my mind the leave which had been reserved to the parties to address further submissions, which is to be found in the last paragraph, paragraph 1124 of the judgment, was entirely appropriate to include a matter such as that. On the other hand that leave would not have extended in any way to permitting, for example, the Bank to revisit questions such as the breaches of contract alleged or the defamation which had been found or matters of fundamental principle and central fact treated within the judgment. 82    In relation to the costs reserved on the application by Paola Holdings Pty Limited to be joined as a further plaintiff in the proceedings, to my mind costs of and occasioned by that application ought be regarded for the purposes of the proceedings in terms of the whole of the proceedings. In short, the costs orders which I have made, and the short minutes to be brought in by the plaintiff, should embrace costs of and occasioned by the application for joinder to be appropriately described as costs as part of the whole proceedings.

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Last Modified: 06/23/1999