Fenech, G. v Sterling, R Summary

’..

NOT FOR GENERAL DISTRIBUTION

2233

THE FEDERAL COURT OF AUSTRILLI.3 )

r m d SOUTH WALES DISTRICT REGISTRY )

No. G344 of 1983

GENEPAL DIVISION

)

BETPEEN

GEORGE FENECH and JUL1.W FENECH

Bppllcant

.m:	RClBERT STERLING Respondent

MINUTES OF ORDEP

Judge maklng order: Eeaumont, J.

Date order made:

13. June 1986

[The

r e made

Sydney

THE COURT ORDEPS THAT:

In sddltion to the sum of $3,975.92 the respondent

pay to the appllcants the sum

of $2,583.13.

t m : Settlement and entry

of orders 1 s dealt wlth In

Order 36 of the Federal Court Rules.

IN THE FEDEFAL COURT OF AUSTPALIA )

NEW SOUTH WALES DISTRICT REGISTRY )

No. G344 of 1983

GENERAL

D I V I S I O N

)

BETWEEN :	GEORGE FENECH and JULIFSJ FENECH
Appllcant
HOBERT STEFLIMG
Respondent

COPJIM:

Beaumont , J .

DATED:

13 June

l986

PEqSONS FOR JUDGMENT (No. 2 )

For

reasons

given

12 September 1985, I

r e se rved

l i b e r t y t o the

a p p l i c a n t s

t o

a p p l y

f o r

f u r t h e r

r e l l e f .

The

matter

was

r e s t o r e d

t o

t h e

l l s t f o r t h l s

purpose.

Agaln,

a l though

given

n o t l c e

the

f u r t h e r

h e a r l n g s ,

t h e

respondent has not

appeared.

Accord ing

the l r

additional

aff i d a c i t

ev ldence ,

t h e

a p p l l c a n t s

say

that ,

t h e y

had been

unable .

November

1 9 7 7 ,

I n v e s t

t o

I n

s u l t a b l e

r e a l

e s t a t e

In-Zestment,

they

would

have

placed

funds

d e p o s i t wl th

Westpac Banking Corporat

lon

savlngs Investment

account .

E-zidence

from

Nestpac

showed

t h a t ,

I n

t h e

r e l e v a n t

p e r i o d .

the

rates of

Interest paid by Westpac

for thls purpose

fluctuated between 7.25% per annum

and 11.5% per annum.

the whole

sum of

$3,650.00 paid by the

appllcants to the

respondent had been invested

with Westpac, it would have

earned lnterest

amountlng

to $3,409.05 over the relevant

perlod.

On the

other hand,

the appllcants should not be

permltted to clalm

both the banklng charges and interest of

325.92. mentioned In the previous

reasons, and Interest

lost on a notlonal Investment. Account should also be taken

of the contlnaency that the whole

of the

sum of $3.650.00

may not have been Invested In

an lnvestment account but

could have been applled elsewhere.	I propose to allow	a
dlscount of $500.00.

In the clrcumstances. after

deducting the

sum of

$352.92 already included In the

prevlous

order, the

appllcants should

now recelve a further sum

of $2,583.13.

That sum has been calculated as follows:-

1.	Further amount clalmed	$3,409.05
L=:

2.	Amount	already	awarded	$325.92
7

Discount for

Contlngency

$500.00

825.92

$2,583.13

3 .

I make the following

order:

In additlon to

the sum of $3,975.92, the respondent

pay to the applicants the sum of $2,583.13.

Counsel and Solicltors

Mr. J.F. Kildea was Instructed

for Applicant:

by the

Public

Solicitors'

Office.

The Respondent did not appear.

Date of hearing:

10 June

1986

Date

Judgment

Delivered:

13 June

1986

J&	THE FEDEF"\L COURT OF AUSTPALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY 1

MO. G344 of 1983

GENERAL

D I V I S I O N

)

BETWEEN :

CEORGE FENECH and JULIAN FENECH

Applicant

ROBEHT

STERLING

Respondent

COP,4M:

Beaumont, J .

D m : 13 June 1986

REASONS FOR JU!XMENT (No. 2 )

For reasons glven on 12 September 1985, I reserved

liberty to the applicants

to apply f o r further rellef.

The

matter was

restored to the

llst for thls purpose. bgaln.

although glven notlce of the	further	hearlngs, the
respondent has not appeared.

Accordlng to their addltlonal affidavlt evldence,

the

appllcants

say

that, I f they

had

been

unable, in

November 1977, to ln7est In a

sultable

real

estate

In-zestment. they would have placed funds

on deposlt wlth

Nestpac Banklng Corporation In a savlngs Investment account.

E-ldence from

Westpac showed that, in the relevant perlod,

NOT FOR GENERAL DISTRIBUTION

161 THE FEDEFiAL COURT OF .9USTRUIA )

NEW SOUTH I W E S DISTRICT REGISTRY )	No. G344 of 1983
GENERAL DIVISION

B r n E N :

GEORGE FENECH and JULIAN FENECH

Appllcant

ROBEPT STERLING

Respondent

MINUTES OF OPDEP.

Judge makmg order:	Beaumont, J.
Date order made:	13 June 1986

ITner e made

Sydney

THE COURT ORDERS THAT:

In addltlon to the sum of $3,915.92 the respondent pay to the appllcants the sum of $2,583.13.

t u : Settlement and entry of orders 1 s dealt wlth In

Order 36 of the Federal Court Rules.

the

rates

interest pald by Westpac for this purpose

fluctuated between 7.25% per annum and 11.5% per annum. If

the whole

sum of

$3,650.00

paid by

the appllcants to the

respondent had been Invested wlth

Westpac, it would

have

earned interest amounting to

$3,409.05

over the relevant

perlod.

On the other

hand, the appllcants should not be

permitted to clalm

both the banklng charges and Interest

$335 .92 ,

mentioned In the previous

reasons,

and Interest

lost on a notional lnvestment. Account should also be taken

of the contlnaency that the whole

of the sum

of $3,650.00

may

not have

been invested In

an Investment account but

could have been applied elsewhere.	I propose to	allow a
dlscount of $500.00.

the clrcumstances, after deductlng the sum

$352 .92

already

Included

the

order, the

applicants should now recelve a further sum of $2,583.13.

That sum has been calculated as follows:-

1.	Further amount clalmed	$3.409.05
L m :

.hnount already

awarded

$325.92

3 .

Discount

Contingency

for

$500.00

825.92

$2.583.13

3 .

I make the following order:

In addltlon to the

sum of $3,975.92, the respondent

pay to the applicants the sum of $2,583.13.

Counsel and Sollcltors

Mr. J.F. Kildea was lnstructed

for Applicant:

by the

Publlc

Solicltors’

Office.

The Respondent did not appear.

Date of hearmg:

10 June

1986

Date

Judgment

Dellvered:

13 June

1986

The case between George Fenech and Julian Fenech (applicants) and Robert Sterling (respondent) was heard in the Federal Court of Australia's New South Wales District Registry. The applicants sought an additional sum of money from the respondent based on lost interest from an alternative investment they would have made if not for their transaction with the respondent. The applicants had previously been awarded damages for the respondent's misconduct and now sought compensation for the lost interest they would have earned had they invested the money with Westpac Banking Corporation instead of with the respondent.

The central legal issue in this case was whether the applicants were entitled to additional compensation for the lost interest they would have earned if they had invested the money with Westpac Banking Corporation. The applicants argued that they should be compensated for the interest they would have earned if they had placed the money in a savings investment account with Westpac, instead of with the respondent. The court had to determine whether the applicants were entitled to this additional compensation and, if so, how much it should be.

In delivering the judgment, Beaumont J considered the evidence provided by the applicants and the respondent. The applicants submitted that if they had not been able to invest in a real estate investment in November 1977, they would have placed the funds in a savings investment account with Westpac Banking Corporation. Evidence from Westpac showed that the interest rates for such an account fluctuated between 7.25% and 11.5% per annum during the relevant period. Based on this evidence, the applicants argued that if the entire sum of $3,650.00 paid to the respondent had been invested with Westpac, it would have earned interest amounting to $3,409.05 over the relevant period.

However, the court held that the applicants should not be permitted to claim both the banking charges and interest of $325.92, mentioned in the previous reasons, and interest lost on a notional investment. Additionally, the court took into account the contingency that the entire sum of $3,650.00 may not have been invested in an investment account but could have been applied elsewhere. Consequently, the court allowed a discount of $500.00. After deducting the sum of $352.92 already included in the previous order, the applicants should now receive a further sum of $2,583.13.

Beaumont J made the following order: In addition to the sum of $3,975.92, the respondent pay to the applicants the sum of $2,583.13. The applicants were represented by Mr. J.F. Kildea, instructed by the Public Solicitors' Office, while the respondent did not appear. The hearing took place on 10 June 1986, and the judgment was delivered on 13 June 1986.

Fenech, G. v Sterling, R

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established