Despot v Registrar-General of NSW (No 2)

Case •

[2013] NSWCA 332

•

10 October 2013

Court of Appeal

New South Wales
Case Title: Despot v Registrar-General of NSW (No 2)
Medium Neutral Citation: [2013] NSWCA 332
Hearing Date(s): On the papers
Decision Date: 10 October 2013
Before: Meagher JA;
Ward JA;
Bergin CJ in Eq
Decision:

(1) Amend order 5 made on 20 September 2013 to read: "Judgment for the appellant against Stelli for the sum of $91,086 plus pre-judgment interest of $23,148, that judgment to take effect on 15 April 2011."

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: INTEREST - calculation of pre-judgment interest - no question of principle
Legislation Cited: Civil Procedure Act 2005, s 100
Cases Cited: Despot v Registrar-General of New South Wales [2013] NSWCA 313
Agusta Pty Ltd v Official Trustee in Bankruptcy As Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129
Category: Consequential orders
Parties: Ranko Despot (Appellant)
Registrar-General of New South Wales
(First Respondent)
Roy Maalouf (Second Respondent)
Stelli Pty Ltd (Third Respondent)
Westpac Banking Corporation (Fourth Respondent)
Dominic Carbone (Fifth Respondent)
Joyce Azzi (Sixth Respondent)
Sky Constructions Pty Ltd (Seventh Respondent)
Representation
- Counsel: Counsel:
J C Hewitt, J E Curtin (Appellant)
Submitting appearance (First Respondent)
K D Ginges (Second and Seventh Respondents)
B J Gross QC, D J Williams (Third and Sixth Respondents)
S Ipp (Fourth Respondent)
J C Kelly SC (Fifth Respondent)
- Solicitors: Solicitors:
Pamela J Enright Solicitor (Appellant)
Gavin Bartier (First Respondent)
Self-represented (Second and Seventh Respondents)
Kheir Lawyers (Third and Sixth Respondents)
Henry Davis York (Fourth Respondent)
Colin Biggers & Paisley (Fifth Respondent)
File Number(s): 2012/56421
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Macready AsJ
- Date of Decision:  31 March 2011
- Citation: [2011] NSWSC 273
- Court File Number(s): 2009/2988692009/298832

JUDGMENT

  1. THE COURT: The Court delivered judgment in this appeal on 20 September 2013: Despot v Registrar-General of New South Wales [2013] NSWCA 313. The orders made included that there be judgment for the appellant against the third respondent, Stelli, for the sum of $91,086 plus pre-judgment interest for the period from 3 July 2008 (the date upon which completion of the relevant contract for sale occurred) to 15 April 2011.

  2. The Court also gave leave to the parties to make further submissions in relation to the calculation of that interest.

  3. Written submissions on that subject have been received from the appellant but not from any other party.

  4. The appellant submits that it was entitled to interest as of right under Special Condition 3.1 of the contract for sale. In that event it would not be entitled to interest under s 100 of the Civil Procedure Act2005 because of s 100(3)(b) which provides that the section does not authorise the giving of interest on any debt in respect of which interest "is payable as of right": see Agusta Pty Ltd v Official Trustee in Bankruptcy As Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 at [39]-[44].

  5. Relying on that contractual provision the appellant says that he is entitled to interest on the unpaid purchase moneys due on completion at 10 per cent per annum.

  6. Special Condition 3.1 provided:

    "Should the purchaser not complete this purchase by the completion date, without default by the Vendor, the Vendor is entitled to recovery from the Purchaser, as liquidated damages, payable on completion:

    3.1 Interest on the balance of purchase money at the rate of 10 per cent (10%) per annum calculated at a daily rate from the completion date to the date of actual completion."

  7. That provision does not entitle the appellant to interest on any part of the purchase money which is not paid on the "completion date" as defined, if completion happens by that date. It provides for liquidated damages in the event that completion does not take place by that date. In that event interest is payable "to the date of completion".

  8. That is not the basis upon which the appellant claims interest at that contractual rate. The appellant claims interest on the unpaid part of the purchase price from the actual date of completion to the date of payment of that amount. He does not claim interest for any period up to the date on which completion actually occurred.

  9. Two things follow. First, the appellant is not entitled to interest for the period after 3 July 2008 under Special Condition 3.1. Secondly, the appellant is entitled to claim pre-judgment interest under s 100.

  10. The appellant's written submissions show that the Court's calculation of interest on that basis was not correct.

  11. The correct calculation of pre-judgment interest, taking into account the rates which prevailed before and following the commencement on 1 July 2010 of Practice Note SC Gen 16, is $23,148 and not $21,746 as calculated by the Court.

  12. Accordingly the Court makes the following further order:

    (1)Amend order 5 made on 20 September 2013 to read: "Judgment for the appellant against Stelli for the sum of $91,086 plus pre-judgment interest of $23,148, that judgment to take effect on 15 April 2011."

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