Ferizis v Nash

[2007] NSWDC 109

Pending Appeal:

District Court

CITATION:	Ferizis v Nash [2007] NSWDC 109
HEARING DATE(S):	16 May 2007
JUDGMENT DATE:	18 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Rein SC DCJ
DECISION:	See [10], [21], [24] and [30].
CATCHWORDS:	Claim for interest on basis of option deed - Issue of construction - Claim for indemnity costs and for former solicitor of defendants to pay plaintiff’s costs - Application for a stay refused
LEGISLATION CITED:	Civil Procedure Act 2005, s 100 District Court Act 1973, ss 51, 128
CASES CITED:	Ankar Pty Ltd & Arnick Holdings Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 Coghlan v SH Lock (Australia) Ltd (1987) 8 NSWLR 88 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; 118 ALR 248 Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354 Harrison v Schipp [2001] NSWCA 13 Jeans v Bruce [2004] NSWSC 758 Oshlack v Richmond River Council (1998) 193 CLR 72 Re Smith; Ex parte Rundle (No 2) (1991) 6 WAR 299 Toll (FGCT) Pty Ltd (Formerly Finemores GCT Pty Ltd) v Alphafarm Pty Ltd [2004] HCATrans 13
PARTIES:	George Ferizis (plaintiff) Christine Nash (first defendant) Graham Vaughan (second defendant)
FILE NUMBER(S):	2804/05
COUNSEL:	Mr R Parsons (plaintiff) Mr M Maxwell (first defendant) Second defendant in person
SOLICITORS:	Merewether & Co Solicitors (plaintiff)

JUDGMENT

1 On 27 April 2007 I handed down judgment for the plaintiff in the amount of $500,000 exclusive of interest and directed the parties to bring in calculations of the interest. I published my reasons, which should be read in conjunction with these reasons, and I shall use the same abbreviations. I also stood over the question of costs at the request of the parties until 16 May 2007, and directed submissions on the issues of interest and costs.

2 On 16 May, Mr R Parsons of counsel appeared for the plaintiff, Mr M Maxwell of counsel appeared for Nash, and Mr Vaughan appeared in person.

3 Written submissions were provided by Mr Parsons and, although late, by Mr Maxwell and Mr Vaughan. Mr Vaughan, in addition to his own submissions, adopted the submissions of Mr Maxwell.

4 Mr Maxwell’s submissions raised the question of a stay.

Interest

5 Clauses 19 and 20 of the Option Deeds, which deal with the obligations of LNG and PED to pay interest and repay the option fee, are in the following terms:

“ 19. Interest on the Option Fee

19.1 The Purchaser acknowledges that the Vendor will release the Option Fee to the Borrower forthwith.

19.2 The Vendor agrees to pay the Purchaser interest on the Option Fee (“interest”) calculated at the rate of twenty per centum per annum (20% p.a.) from the date of this Deed until the date on which the Purchaser exercises the Call Option. Upon the exercise of the Option the interest accrued shall be credited towards the purchase price.

20. Repayment of Option Fee

20.1 At any time after the expiration of eleven (11)…