Legal Research
Cases
Hanave Pty Ltd v LFOT Pty Ltd

Hanave Pty Ltd v LFOT Pty Ltd

Link copied

Case Copied 9 July 2004 29 min read

Contents

On this page

FEDERAL COURT OF AUSTRALIA

Hanave Pty Limited v LFOT Pty Limited [2004] FCAFC 180
PRACTICE & PROCEDURE - interest - pre-judgment interest - failure to claim pre-judgment interest before judgment entered - application of the slip rule - application of the discretion under O 35 r 7 Federal Court Rules - whether in amending an error or mistake an injustice is done to the other party
PRACTICE & PROCEDURE - application of s 51A Federal Court of Australia Act 1976 (Cth) - no requirement for pre-judgment interest to be claimed prior to judgment - construction of ‘good cause to the contrary’ in s 51A Federal Court of Australia Act 1976 (Cth) - factors to be taken into account - delay in seeking pre-judgment interest - conduct of solicitor - whether there exists a discretion to award some but not all of the interest claimed - public interest in finality of litigation
Federal Court of Australia Act 1976 (Cth), s 51A
Trade Practices Act 1974 (Cth), O. 35 r. 7(3)
Australian Guarantee Corporation Ltd v Border Printing Services Pty Ltd (unreported decision of Lockhart, Spender and Hill JJ of 21 April 1989 Cons
Cropper v Smith (1884) 26 Ch D 700 Cons
Gould v Vaggelas (1985) 157 CLR 215 Refd to
HK Frost Holdings Pty Ltd (In Liq) v Darvall McCutcheon (a firm) [1999] FCA 795 Cited
Kewside Pty Ltd v Warman International Ltd (1990) ATPR 41- 012 Refd to
L Shaddock and Associates Pty Ltd v The Council of the City of Parramatta (1983) 151 CLR 590 Cons
The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Cited
Whitlock v Brew (1968) 118 CLR 445 Cons
HANAVE PTY LIMITED V LFOT PTY LIMITED (IN LIQUIDATION) (FORMERLY JAGAR PROJECTS PTY LIMITED), PAUL EWEN MITCHELL TRESIDDER, JOSEPH RAYMOND GLEW, WILLIAM ROBERT BURKE
N 1824 OF 2003
WILCOX, KIEFEL AND ALLSOP JJ
SYDNEY
9 JULY 2004

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1824 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

HANAVE PTY LIMITED
APPELLANT/CROSS RESPONDENT

AND:

LFOT PTY LIMITED (IN LIQUIDATION) (FORMERLY JAGAR PROJECTS PTY LIMITED)
FIRST RESPONDENT

PAUL EWEN MITCHELL TRESIDDER
SECOND RESPONDENT/ FIRST CROSS-APPELLANT

JOSEPH RAYMOND GLEW
THIRD RESPONDENT/SECOND CROSS-APPELLANT

WILLIAM ROBERT BURKE
CROSS RESPONDENT

JUDGES:

WILCOX, KIEFEL AND ALLSOP JJ

DATE OF ORDER:

9 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The cross-appeal be allowed.
3.The orders of Moore J of 22 October 2003 numbered ‘2’ and ‘3’ be set aside and in lieu it be ordered that:
(2)the application for pre-judgment interest be dismissed.
(3)the applicant pay the respondents’ costs of the application.

4.The appellant pay the respondents’ costs of the appeal and cross appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1824 OF 2003

ON APPEAL FROM A SINGLE JUDGE OF…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Hanave Pty Ltd v LFOT Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] FCAFC 180
Decision Date: 9 JULY 2004

CaseChat Overview and Summary

Hanave Pty Ltd sought pre-judgment interest against LFOT Pty Ltd and Mr Tresidder, claiming that their judgment debt of $750,000 should accrue interest from the date the cause of action arose on 17 August 1994. The primary contention was whether Hanave was entitled to pre-judgment interest under section 51A of the Federal Court of Australia Act 1976 (Cth) due to an alleged accidental slip or omission by their legal advisors. LFOT and Mr Tresidder argued that Hanave had deliberately omitted to seek pre-judgment interest and that such interest should not be granted given their representations in previous correspondence.

The court was tasked with determining whether Hanave’s claim for pre-judgment interest was valid and whether it could be retrospectively applied despite the omission in the original judgment. The court examined the statutory provisions under section 51A of the Federal Court of Australia Act and the relevant rules, particularly Order 35 r 7, which allows for the correction of clerical mistakes or errors from accidental slips or omissions. The court also considered the circumstances under which Hanave had represented their interest claim and whether the slip rule could be invoked in this case.

The court held that Hanave had not demonstrated that the omission to claim pre-judgment interest was accidental or due to an error. The court found that Hanave had deliberately chosen not to seek pre-judgment interest at the appropriate time and had made specific representations in their correspondence that limited their interest claim. As a result, the court determined that the slip rule did not apply, and Hanave was not entitled to pre-judgment interest from the time the cause of action arose. Consequently, Hanave’s application for pre-judgment interest was dismissed, and they were ordered to pay the respondents’ costs of the application.

The appeal was dismissed, and the cross-appeal was allowed. The orders of Moore J were set aside, and it was ordered that Hanave’s application for pre-judgment interest be dismissed, with Hanave to pay the respondents’ costs of the application. Additionally, Hanave was ordered to pay the respondents’ costs of the appeal and cross-appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The cross-appeal be allowed.

3. The orders of Moore J of 22 October 2003 numbered ‘2’ and ‘3’ be set aside and in lieu it be ordered that:

(2) the application for pre-judgment interest be dismissed.

(3) the applicant pay the respondents’ costs of the application.

4. The appellant pay the respondents’ costs of the appeal and cross appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX, KIEFEL AND ALLSOP JJ

On 6 May 2002 Hanave’s solicitors wrote to LFOT’s and Mr Tresidder’s solicitors claiming the payment of $750,000 together with post-judgment interest. No claim for pre-judgment interest was then made. Hanave paid $750,000 by 28 October 2002 in two instalments. In a bankruptcy notice dated 29 October 2002, directed to Mr Tresidder, Hanave claimed $316,726.03 for the periods 31 August 1998 to 28 May 2002 and from 28 May 2002 to 28 October 2002, in addition to the judgment sum. The two periods covered the whole of the time that elapsed between Moore J’s first judgment and the payment of the judgment sum. The claim was said to be ‘pursuant to Order 35 Rule 8 of the Federal Court Rules’. That rule provides for the rate of interest which is to apply to judgment debts, unless the Court orders otherwise. It relates only to interest after judgment. THE APPLICATION FOR PRE-JUDGMENT INTEREST On 23 December 2002 Hanave filed a notice of motion seeking an order pursuant to O 35 r 7(3) varying the order of 11 November 1999 to include an order for ‘interest on the sum of $750,000 be paid by the first and second respondents on and from the 31 August 1998’. On 20 February 2003 Hanave applied to amend the motion in order to seek interest from the time the cause of action arose, 17 August 1994, until judgment. Moore J directed that the matter proceed upon pleadings. Hanave’s statement of claim alleged that there had been an accidental slip or omission on the part of its legal advisors and that the judgment entered on 18 February 2000 should have included pre-judgment interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”). Interest totalling $441,863.01 was claimed, the calculations being based upon the rates of interest from time to time provided for in the rules of the Supreme Court of New South Wales. A claim for post-judgment interest was also made although it was unnecessary. The effect of s 52 of the Federal Court of Australia Act is that post-judgment interest accrues without an order of the Court. The defence of LFOT and Mr Tresidder denied that conditions existed for the application of the slip rule. In particular it alleged that Hanave had not applied at any of the five hearings in the proceedings and had made a deliberate decision not to apply to the Court to seek interest until at least 23 December 2002. They contended that it was necessary for Hanave to have applied for pre-judgment interest when it commenced the proceedings or when the proceedings were remitted to Moore J. Further, in its letter of 5 September 2000 Hanave had represented that they were required to pay only $375,000 and interest on that sum. Hanave did not press any larger claim and it should not be permitted to do so now. STATUTORY PROVISIONS AND RULES Order 35 r 7 of the Federal Court Rules provides: (1) The Court may vary or set aside a judgment or order before it has been entered. (2) The Court, where it is not exercising its appellate or related jurisdiction under Division 2 of Part III of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where: (a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order; (b) the order was obtained by fraud; (c) the order is interlocutory; (d) the order is an injunction or for the appointment of a receiver; (e) the order does not reflect the intention of the Court; or (f) the party in whose favour the order was made consents. (3) A clerical mistake in a judgment or order, or an error arising in a judgment or order from an accidental slip or omission, may at any time be corrected by the Court. (4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX, KIEFEL AND ALLSOP JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1824 OF 2003

BETWEEN:	HANAVE PTY LIMITED APPELLANT/CROSS RESPONDENT
AND:	LFOT PTY LIMITED (IN LIQUIDATION) (FORMERLY JAGAR PROJECTS PTY LIMITED) FIRST RESPONDENT PAUL EWEN MITCHELL TRESIDDER SECOND RESPONDENT/ FIRST CROSS-APPELLANT JOSEPH RAYMOND GLEW THIRD RESPONDENT/SECOND CROSS-APPELLANT WILLIAM ROBERT BURKE CROSS RESPONDENT
JUDGES:	WILCOX, KIEFEL AND ALLSOP JJ
DATE OF ORDER:	9 JULY 2004
WHERE MADE:	SYDNEY