FICO v O'LEARY

[2004] WASC 215 (S)

FICO -v- O'LEARY & ORS [2004] WASC 215 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 215 (S)
Case No:	CIV:2163/1999	Heard:	2 - 6, 9 - 13 DECEMBER 2002, 16 - 17 JANUARY 2003 & 17 DECEMBER 2004
Coram:	EM HEENAN J	Delivered:	11/10/04
Supplementary Delivered:	17/12/04
No of pages:	7	Judgment Part:	1 of 1
Result:	By consent amendment to terms of judgment
Category:	B
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Parties:	ANTHONY ALDO PASQUALINO FICO BRENDAN O'LEARY SIGMA CO LTD MARENA HOLDINGS PTY LTD (ACN 052 544 322) DEENA ASHOORIAN TOMMASO FICO
Catchwords:	Application to amend judgment Consent Amendment of order Turns on its own facts
Legislation:	Nil
Case References:	Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 Storey & Keers Pty Ltd v Johnston (1987) 9 NSWLR 446 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : FICO -v- O'LEARY & ORS [2004] WASC 215 (S) CORAM : EM HEENAN J HEARD : 2 - 6, 9 - 13 DECEMBER 2002, 16 - 17 JANUARY 2003 & 17 DECEMBER 2004 DELIVERED : 11 OCTOBER 2004 SUPPLEMENTARY
DECISION : 17 DECEMBER 2004 FILE NO/S : CIV 2163 of 1999 BETWEEN : ANTHONY ALDO PASQUALINO FICO

Plaintiff

AND

BRENDAN O'LEARY
First Defendant

SIGMA CO LTD
Second Defendant

MARENA HOLDINGS PTY LTD (ACN 052 544 322)
Third Defendant

DEENA ASHOORIAN
Fourth Defendant

TOMMASO FICO
Third Party

(Page 2)

Catchwords:

Application to amend judgment - Consent - Amendment of order

Turns on its own facts

Legislation:

Nil

Result:

By consent amendment to terms of judgment

Category: B

Representation:

Counsel:

Plaintiff : Mr A Metaxas
First Defendant : Ms S L Ford
Second Defendant : Ms S L Ford
Third Defendant : Dr P R MacMillan
Fourth Defendant : Dr P R MacMillan
Third Party : No appearance

Solicitors:

Plaintiff : Metaxas & Vernon
First Defendant : Mallesons Stephen Jaques
Second Defendant : Mallesons Stephen Jaques
Third Defendant : MacKinlays
Fourth Defendant : MacKinlays
Third Party : No appearance

(Page 3)

Case(s) referred to in judgment(s):

Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590
Storey & Keers Pty Ltd v Johnston (1987) 9 NSWLR 446

Case(s) also cited:

Nil


(Page 4)

1 EM HEENAN J: Since the reasons for decision in this case were published on 11 October last the parties have agreed upon the interest which should be calculated upon the second defendant's counterclaim against the plaintiff for the balance owing for stock supplied. They have also agreed upon the consequent amount of the judgment to be entered in favour of the second defendant against the plaintiff on that counterclaim as provided for in subpar 316(4) of the original reasons for decision.

2 Following that agreement a final judgment for the plaintiff on his claim; for the second defendant against the plaintiff on that counterclaim; dismissing the third defendant's counterclaim against the plaintiff; and judgment for the fourth defendant against the first and second defendants on the fourth defendant's cross claim; and dismissing other counterclaims and cross claims has been entered and extracted in terms which give effect to the orders proposed in par 316 of the original reasons for judgment.

3 Despite this, an application has been made by the plaintiff to amend the terms of the judgment to increase the amount of damages awarded in favour of the plaintiff and to make a corresponding increase in the interest calculated on the damages. In addition, the application seeks to make consequential amendments to the amounts declared as the net contributions due as between the defendants in respect of the liability for which they have each jointly and severally been found to owe to the plaintiff. This application to amend the terms of the judgment is supported by the consent of each of the defendants and, for that reason is one which I can now entertain, notwithstanding that judgment has been entered and extracted - RSC O 21 r 10 and L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590 at 594.

4 The occasion requiring the amendment can be readily identified from an examination of [285] of the reasons for decision where, in quantifying the damages recoverable by the plaintiff, a deduction of $10,172 was made for the proceeds of stock sold by the plaintiff after he closed down the pharmacy business and vacated the premises. It is not disputed that there was stock sold on that occasion and that the plaintiff recovered the sum of $10,172 from that sale which reduced his losses to that extent. What was overlooked, however, is the fact (admitted now by all the parties) that the plaintiff's claim for operating losses from the period 1999 to 2001 of $120,863 (also referred to in [285]) was a figure advanced after credit had been given for the $10,172 realised from the sale of stock. This being the case, the additional reduction of the plaintiff's claim by the same amount resulted in a double deduction. In other words, the amount of

(Page 5)

$312,731 for the plaintiff's damages calculated in [285] should have been $10,172 greater, namely $322,903.

5 That correction requires some consequential further corrections to [292] where the figure of $312,731 should become $322,903, the interest should increase from $94,385 to $97,455 and the total should change from $407,116 to $420,358. Similarly, there should be consequential amendments to the calculations in [301] where the quantification of the net liabilities of the several defendants, as between themselves, after contributions were made, were set out. The result of those corrections is that the net amounts for mutual liabilities, between themselves, after the plaintiff's claim has been fully satisfied which the several defendants should be required to meet will be:

the first defendant $28,608

the second defendant $28,608

the third defendant $28,608

the fourth defendant $334,533

Similar corrections and adjustments should be made to [316] so that the final form of the judgment and orders should be to give effect to the following conclusions:

1. judgment for the plaintiff against each of the defendants for $420,358;

2. order that the lease by the third defendant, as assigned to the plaintiff, is void to the extent that it requires payment of outstanding rental variable outgoings for the premises from 12 December 1998 onwards;

3. order that the agreement for the sale of the pharmacy business from the fourth defendant to the plaintiff is void to the extent that it would otherwise require the payment of $15,000 for the outstanding balance of the purchase price;

4. judgment on the second defendant on its counterclaim against the plaintiff for the sum of $64,777.81 plus interest thereon at 9 per cent per annum, to be calculated in accordance with these reasons. Liberty is reserved for

(Page 6)

the parties to bring in a minute showing the calculations of the interest within 21 days;

5. the third defendant's counterclaim against the plaintiff be dismissed;

6. as between the defendants, order that there be equitable contribution to the effect that the contribution be made by each of the defendants towards the judgment in favour of the plaintiff so that the defendants' respective net liabilities to the plaintiff, after contributions, shall be:


• first defendant - $28,608

• second defendant - $28,608

• third defendant - $28,608

• fourth defendant - $334,533


7. Judgment for the fourth defendant against the first and second defendants on the fourth defendant's cross claim by declaring that the first and second defendants:

(a) pays to the fourth defendant $267,978;

(b) in addition, further declare that the first and second defendants are liable to indemnify the fourth defendant such further amount, being so much of the judgment in favour of the plaintiff in excess of $331,223 (up to a possible total of $101,191) being her share of the contribution, as she may be called upon to discharge. Liberty be reserved to apply on notice for a determination of that amount after the judgment in favour of the plaintiff has been satisfied.

6 Although the need to make these corrections was due to my conclusion that the plaintiff's claim for trading losses suffered from the operation of the pharmacy business should be reduced by the amount of $10,172 for the proceeds of the stock which he sold, when the claim already had brought the proceeds of the sale of stock to account, it is perhaps arguable that this is not a correction which could ordinarily be made, after judgment has been entered and extracted, in reliance upon the slip rule - Ivanhoe Gold Corp Ltd v Symonds (1906) 4 CLR 642 at

(Page 7)

669 - 670 per Higgins J and Storey & Keers Pty Ltd v Johnston (1987) 9 NSWLR 446 per McHugh JA at 449 and Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 per Lockhart J at 210. The important feature of the present application is that the application to amend the judgment is supported by all the parties so that the alteration is, in effect, made by consent. In these circumstances it would be quite inappropriate to refuse the application in the case of an acknowledged need for correction by insisting that such a result could be achieved only by an appeal.

7 For this reason I made orders giving effect to the application to correct the terms of the judgment on this account. As the parties desire more time to negotiate over issues of costs, all questions of costs are adjourned with liberty to any party to relist the motion for judgment concerning costs on notice.