Harrop Engineering Australia Pty Ltd v Beauville Pty Ltd (No 2)
[2016] VSC 106
•18 MARCH 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
S CI 2014 01036
| ACN 006 577 162 PTY LTD (formerly HARROP ENGINEERING AUSTRALIA PTY LTD) as trustee for the HARROP FAMILY TRUST AND OTHERS | Plaintiffs |
| v | |
| BEAUVILLE PTY LTD (ACN 134 196 080) AND OTHERS | Defendants |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 16, 17 MARCH 2016 |
DATE OF JUDGMENT: | 18 MARCH 2016 |
CASE MAY BE CITED AS: | HARROP ENGINEERING AUSTRALIA PTY LTD v BEAUVILLE PTY LTD (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 106 |
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Interest – Contract – Provision for interest on debts due and payable – Contract applied.
Costs – Trial – Plaintiffs partially successful – Unmeritorious claims – Unmeritorious defences – Apportionment – Offers of compromise – Judgment not more favourable to plaintiffs than defendants’ offer – Supreme Court Act 1986 (Vic), s 24(1) – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 26.08(3).
Stay – Application to stay judgment refused – Supreme Court Rules, r 66.16.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M Clarke | Barry Kenna & Co |
| For the Defendants | Mr P Wallis | Norman Waterhouse |
HIS HONOUR:
A. Introduction
On 8 March 2016, judgment was delivered in this proceeding (“the Judgment”).[1] The plaintiffs were partially successful in establishing that the defendants owed them further moneys under the Sale Agreements (which were executed on 5 December 2008).
[1][2016] VSC 17. In this judgment, the meaning of the terms used will be the same as the terms as defined in the Judgment.
There were many issues between the parties, some of which were resolved before trial. At the time the trial commenced, the principal issues that remained were as follows:
(1)Whether the error in Schedule 1 of the Engineering Sale Agreement was arithmetical, so that the total of the figures listed should be rectified to read $3,699,413 (instead of $3,600,413) or whether the total as recorded in Schedule 1 was correct.
(2)Whether Beauville and Natra breached the terms of the Engineering Sale Agreement, either in the terms as executed or, alternatively, as varied, by reason that the Fidia Leases were not paid out until 19 November 2009; and, if so, the amount of any loss suffered by the Vendors.
(3)Whether an adjustment is required to the Purchase Price for the amount payable for Plant and Equipment, or any other claim may be made, by reason that certain Stock was not included in the stock count sheets as at 5 December 2008, including:
(a)Stock subsequently accounted for in the Reason 400 Code;
(b)work-in-progress;
(c)superchargers returned by Toyota in 2009.
(4)Whether further adjustments should be made under each of the Sale Agreements to the respective Purchase Prices with respect to sick leave entitlements; and, if so, to what extent.
(5)Whether the plaintiffs are entitled under the Sale Agreements to any and, if so, what tax benefits on all employee entitlements.
(6)Whether the plaintiffs are entitled to interest in accordance with clause 19.1 of the Sale Agreements for any amounts found to be owing.
(7)Whether an obsolescence claim made with Toyota in the sum of $89,563.66 was accepted by Toyota; and, if so, whether the plaintiffs received a benefit of that or any other amount from Toyota; and, if so, whether the defendants are entitled to an adjustment under the Engineering Sale Agreement of the Purchase Price as a result.
(8)Whether the plaintiffs were entitled to an adjustment in their favour of $211,996 with respect to patterns and coreboxes the subject of the sale.
(9)Whether the plaintiffs were estopped from making any claims in this proceeding.
With respect to the issues as set out above, those issues were determined as follows:
(1) The plaintiffs were entirely successful.
(2)The plaintiffs were successful in establishing a breach, though not any substantive loss. However, it appears that because of the reasons for Judgment, for the purpose of finalising a settlement figure, the adjustment against the plaintiffs will be slightly reduced.
(3)The defendants were entirely successful with each of the 3 substantive issues raised.
(4)The defendants were entirely successful, with part of the claim for sick leave being abandoned during closing submissions.[2]
(5)The defendants were entirely successful.
(6)I will return to this item.[3]
(7)The plaintiffs were entirely successful.
(8)The plaintiffs withdrew this claim on day 3 of the trial.
(9)The defendants withdrew this defence in reply closing submissions.
[2]Judgment, [117].
[3]See pars 6-24 below.
Upon delivery of the Judgment, there were still issues outstanding between the parties that were not the subject of the Judgment. Accordingly, the matter was adjourned for the parties to resolve all issues, consistent with the findings in the Judgment, so judgment could be entered for an agreed amount by which all disputes would be finalised.
On 16 March 2016, the court was informed that it was agreed between the parties judgment would be entered in favour of the plaintiffs in the principal sum of $120,000. The remaining issues are:
(1)Whether the plaintiffs are entitled to interest on that amount, and if so on what basis.
(2) The question of costs.
(3)Whether the judgment to be entered in favour of the plaintiffs should be stayed.
B. Interest
In my opinion, the issue concerning interest payable on the agreed principal sum of $120,000 is straightforward. The sum of $120,000 has been arrived at after the parties have considered numerous components and aspects of the businesses in question, and made a large number of consequential adjustments. In circumstances where there was no agreement between the parties as to whether any particular items could be identified as part of the amount of $120,000, it would be incorrect to attribute the sum of $120,000 to any specific matter or matters.
By reason of the findings made in the Judgment,[4] the “balance of the Purchase Price” became due and owing on 8 April 2009. More particularly for present purposes, until this time, the defendants were not in a position to know whether further moneys were payable to the plaintiffs or, by reason of the substantial amounts already paid by the Purchasers, whether the further adjustment (because of the validation of the value of the Stock) would have resulted in moneys being payable to the Purchasers. However, from 8 April 2009, regardless of any ongoing disputes as to other adjustments, the defendants were in a position to ascertain and proffer the correct settlement sum under the Sale Agreements. In those circumstances, it must follow that the amount of $120,000 was due and payable, at the very latest (no earlier date was contended for by the plaintiffs with respect to any aspect of this sum), on 8 April 2009.
[4]Judgment, [128]-[129].
It follows that the sum of $120,000 has been a debt due under the Sale Agreements since 8 April 2009.
By operation of clause 19.1 of the Sale Agreements, interest was payable on an amount due “under [the Sale Agreements] on the due date”, at a rate of 3 percent above the National Australia Bank overdraft rate from that time, with interest accruing on a daily basis, payable on demand.
As a matter of contract, interest should be paid on the sum of $120,000 pursuant to clause 19.1 from 8 April 2009. However, as part of the settlement discussions between the parties, it was agreed there would be an adjustment in favour of the plaintiffs in the sum of $6,164.56 on the basis that no interest would be payable on that sum. Thus, judgment will be ordered in favour of the plaintiffs in the principal sum of $120,000, together with interest pursuant to clause 19.1 on the sum of $113,835.44. The parties agreed that, if interest was payable on this amount under clause 19.1 from 8 April 2009, the interest, up to and including today, totals $161,378.81.[5]
[5]The amount of interest was provided to the court by the plaintiffs and agreed to by the defendants’ solicitors.
The defendants submitted that this would be a windfall to the plaintiffs. They submitted that a commercial rate, in accordance with prevailing interest rates on retail deposits and investments, as provided by the Reserve Bank of Australia, should be applied rather than the rate specified in clause 19.1. In my view, there is no proper basis for applying this alternative rate. Contractually, the parties bound themselves to the rate that would be payable on debts due. There was no suggestion that the rate provided in clause 19.1 amounted to a penalty.
Further, and notwithstanding the matters set out in paragraph 6 above, the defendants contended that, of the judgment of $120,000, $100,000 represents the amount the plaintiffs are entitled to by reason of their success in the rectification claim.[6] For completeness, I will address the submissions made by the defendants based on the premise that the sum of $120,000 is severable. As may be seen from paragraphs 13 to 18 below, this alternative approach makes no difference to the outcome.
[6]In fact, the difference between the parties was $99,000 representing the difference between $100,000 (contended for by the plaintiffs) and $1,000 (as submitted by the defendants). However, I was informed that, until now, the defendants had never made any allowance for office fitout in the various adjustments put forward.
On the basis that this approach was accepted by the court, with respect to the amount of $100,000, the plaintiffs seek interest pursuant to clause 19.1 of the Engineering Sale Agreement, alternatively interest pursuant to s 58 of the Supreme Court Act 1986 (Vic).
In determining whether, and if so, what interest would be payable with respect to this award arising out of the rectification case, it is necessary to identify the effect of granting relief to rectify the Engineering Sale Agreement. The position is succinctly put as follows:[7]
[T]he effect of any decree of rectification is necessarily retrospective, even if this involves the ex post facto validation of acts otherwise invalid done under the instrument in its original form. The corrected instrument is to be read as if it had originally been executed in its rectified form.
(Citations omitted.)
[7]JD Heydon et al, Meagher, Gummow and Lehane’s: Equity Doctrines and Remedies (5th ed, 2015), 927 [27-010].
It follows that the amount awarded for rectification was due and owing in accordance with the terms of the Engineering Sale Agreement.
The defendants contended that by reason of the oral agreement reached shortly before the Sale Agreements were executed,[8] that Completion had not occurred, and therefore the amount for the office fitout had not become due and payable. In short, it was submitted that the Completion Payment included the office fitout and, by reason that all payments had been deferred other than the payments to the Commonwealth Bank, Completion had not occurred in accordance with clause 3.2.2 of the Sale Agreements.
[8]Judgment, [28].
I do not accept this submission. Critically, it is contrary to the agreed position of the parties at trial. As reflected in footnote 9 of the Judgment, the parties agreed Completion did, in fact, occur on 5 December 2008. Further, and in any event, there was nothing in the oral agreement made which suggested that Completion itself was to be deferred. Although clause 5.1 contemplated that Completion might occur on a date other than the Scheduled Completion Date, being 5 December 2008, there was no agreement between the parties “in writing” to defer Completion to another date. Further, clause 5.3 provided that at Completion the Vendors had to deliver to the Purchasers, in substance, all of the property of the plaintiffs. This is in fact what occurred. There were other provisions in the Sale Agreements which made it clear that Completion was not to be delayed.[9] It followed that the risks related to the Assets passed at this time.[10]
[9]See, for example, cl 7.1.4.1.
[10]See cl 5.6 of the Sale Agreements.
Viewed in the context of the terms of the Sale Agreements, which were substantially drafted at the time the oral agreement was entered into, the oral agreement cannot properly be understood as agreeing to defer Completion. Rather, the parties agreed to defer the resolution of some aspects of the payment of the Purchase Price so that Completion could in fact go ahead on 5 December 2008.
As to the remaining $20,000, by reason of the partial settlement referred to in paragraph 10 above, $6,164.56 must be excluded from this sum. Accordingly, the further issue concerning the applicability of interest on the agreed judgment sum of $120,000 is confined to the sum of $13,835.44.
The defendants contended that no interest should be paid on this further amount by reason of the position adopted by the plaintiffs in response to the defendants’ position as at 8 April 2009. On that day, once the amount for Stock had been determined under clause 6 of the Sale Agreements, the defendants provided a settlement statement containing a balance of $55,662.30 in favour of the plaintiffs. In other words, the defendants’ position as at 8 April 2009 was that the Purchasers were apparently willing to make a further payment up to this sum.
The defendants’ position was rejected by the plaintiffs. In essence, the defendants submitted that, but for the rejection of the defendants’ proposed settlement amount (which did not include any amount for office fitout), the matter would have been resolved by the payment to the plaintiffs as proposed by the defendants.
There are at least 3 responses to this. First, the position of the defendants changed. On 4 December 2009, the defendants no longer accepted that moneys were payable to the plaintiffs. By an email of that date, the defendants claimed that $22,232.94[11] was owing to the defendants. Secondly, there is no evidence that the defendants sought to tender the amount of $55,662.30 or any other sum at this time to resolve the issues in dispute. In the absence of such conduct, it cannot be suggested that the amount outstanding was anything other than an amount due and payable. This position is not affected by the fact that the parties were still arguing about numerous other adjustments. Thirdly, it is questionable how relevant the position adopted by the defendants as at 8 April 2009 is, in circumstances where the defendants were yet to address the position with respect to the Fidia Leases. As may be seen from the first point above, once this matter had been addressed, the defendants denied they owed any further moneys under the Sale Agreements.
[11]In fact, the email specified a different amount to the attached statement, namely $22,292.34.
Accordingly, the further submissions provide no reason for interest to not be payable on the amount of $13,835.44 under clause 19.1 of the Sale Agreements.
As I have found interest is payable in accordance with clause 19.1 on either of the scenarios referred to above, it is unnecessary to consider the submissions concerning s 58 of the Supreme Court Act.
C. Costs
C.1 Relevant principles
The parties filed extensive submissions with respect to costs. Also oral submissions were made. It is unnecessary to refer individually to each of the matters argued.[12]
[12]Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481, 484 [12] (Maxwell P and Kellam JA).
Section 24(1) of the Supreme Court Act 1986 (Vic) provides:
Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
The function of costs is compensatory.[13] The relevant principles were summarised in Chen v Chan (No 2):[14]
[13]Latoudis v Casey (1990) 170 CLR 534, 567.1 (McHugh J).
[14][2009] VSCA 233, [10] (Maxwell P, Redlich JA and Forrest AJA).
(1)The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim.
(2)The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do “substantial justice” as between the parties on matters of costs.
(3)Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.
(4)A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.
(5)Where a Court determines to make an order apportioning costs, then it does so primarily as “a matter of impression and evaluation”, rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.
(6)Where a number of parties have had the same representation, there is a “rule of thumb” as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.
(7)Usually, an order for costs will be made on a party/party basis.[15] But an order for costs on a solicitor/client or indemnity basis may be made where special or unusual circumstances have been demonstrated, for example, by establishing misconduct in the proceeding, that the proceeding was brought for an ulterior purpose, or that it was patently unreasonable to institute, or maintain, the proceeding. Special circumstances may also include the making of an allegation of fraud which is not proved.
[15]From 1 April 2013, costs are generally awarded on a standard basis: Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 63.28(a).
C.2 Offers of compromise
An additional matter to consider on the question of costs was the fact that offers of compromise were served before the trial commenced. In addition to an earlier offer of compromise by the defendants of $200,000 plus costs, on 6 October 2015 the defendants served a further offer of compromise for $400,000 plus costs.[16] On the same day, the plaintiffs served an offer of compromise for $1.5 million plus costs. Neither offer was accepted.
[16]Both parties agreed the date the offer of compromise was served was 6 October 2015. For completeness, I note the document is dated 12 October 2015.
Before considering the effect of the offers of compromise, I will consider the issue of costs generally.
C.3 Criticisms of the plaintiffs’ conduct
With some considerable justification,[17] the defendants criticised the plaintiffs for bringing some of the claims made, on the basis that they had no merit. With respect to the claim relating to patterns and coreboxes, they submitted it ought to have been abundantly clear to the plaintiffs that, with a book value of zero as at 30 June 2008, the claim was bound to fail. This submission is irrefutable. The relevant fact was drawn to the plaintiffs’ attention by their accountant in 2013. In short, the claim should not have been made.
[17]Submissions were made that the plaintiffs contravened various provisions of the Civil Procedure Act 2010 (Vic). Such allegations potentially raise serious issues. I do not propose to make express findings on these issues. Each of the matters raised may properly be considered in the exercise of the court’s discretion without making an actual determination as to whether the Civil Procedure Act has been contravened.
Further, criticism was made by the defendants of the attempt by the plaintiffs to have any adjustments against them not include the goods and services tax component of payments made by the defendants. The basis upon which the plaintiffs’ submission was made was that the defendants would be entitled to an input credit for that tax paid. This point was particularly relevant to the issues concerning the Fidia Leases. Belatedly, the plaintiffs have acknowledged that, with respect to the Fidia Leases, the plaintiffs themselves (or 1 of them) have already claimed a credit for the goods and services tax component of the adjustment. Again, this claim should not have been made.
Furthermore, criticism was made of the claim for work-in-progress by the plaintiffs. Correctly, it was stated that the evidence of Harrop Junior at trial could not substantiate the claim. However, unlike the previous 2 matters referred to above, it is unlikely the plaintiffs could have predicted this. In a witness statement signed by Harrop Junior on 5 August 2015, Harrop Junior set out evidence he proposed to give in relation to work-in-progress which was quite different from that given at trial. In that witness statement, Harrop Junior positively stated that work-in-progress had not been counted and could not be accurately counted physically. He gave very different evidence at trial. Accordingly, the same level of criticism cannot properly be made; but it must be noted that, despite the evidence at trial given by Harrop Junior, the plaintiffs persisted with the claim.
Next, the defendants criticised the claims made with respect to the Reason 400 Code. Again, they submitted that Harrop Junior did not give evidence that supported such a claim. I agree. Further, there is nothing in the witness statement filed 5 August 2015 which suggested Harrop Junior would give evidence at trial that discussions concerning the Reason 400 Code had been had in a manner which would give rise to a variation of the Sale Agreements. It follows that there was no substance to this claim.
With respect to sick leave, part of that claim was devoid of merit. Effectively, this was acknowledged in closing submissions by the plaintiffs’ counsel.[18] Equally, that part of the plaintiffs’ claim was not the subject of any evidence from the plaintiffs’ expert, Rigoni.
[18]Judgment, [117].
The matters referred to above were all quite distinct from those upon which the plaintiffs succeeded. This would, prima facie, suggest that there ought to be a very significant apportioning of costs as they were each substantial claims. However, before this can be properly considered, it is also necessary to look at the position adopted by the defendants.
C.4 Criticisms of the defendants’ conduct
In my view, the claim for rectification by the plaintiffs was a very strong one. A like observation was made by Derham AsJ in giving judgment with respect to an application for security for costs.[19] At the time his Honour gave judgment, the allegations with respect to rectification were simply denied.[20] Subsequently, the defendants amended their defence, on 24 February 2015, to seek to raise a positive defence. However, at trial, although the rectification claim was still opposed, the defence as pleaded turned out to be of little substance.[21] In short, no substantive evidence was led in support of it.[22]
[19]ACN 006 577 162 Pty Ltd v Beauville Pty Ltd [2014] VSC 298, [18].
[20]Ibid.
[21]Judgment, [47]-[56].
[22]Judgment, fn 62.
Next, the defendants pleaded a set-off by reason of an obsolescence claim.[23] Central to that claim was an allegation that the plaintiffs “wrongly received and retained” an amount from Toyota “for their own use and benefit”. There was simply no evidence to support this allegation and yet the defendants persisted throughout to maintain this claim.
[23]Judgment, [133]-[141].
Next, “in answer to the whole of the plaintiffs’ claim”, the defendants pleaded that they were induced to enter into the Sale Agreements by reason of certain assumptions, to which it was said that the defendants, to the knowledge of the plaintiffs, acted in entering into the Sale Agreements. In closing, the defendants made no submissions in support of these allegations. When this was referred to by the plaintiffs’ counsel, the allegations were withdrawn in their entirety. Based on the evidence that was led at trial, this withdrawal was the only proper course.
C.5 Exercise of the court’s discretion
In summary, in my view, both the plaintiffs and the defendants may be properly criticised for pursuing claims and defences that had little or no merit. Each of the matters referred to above consumed significant amounts of court time, and, it may be inferred, significant costs. That said, as the reasons set out above disclose, there were a larger number of matters of little merit pursued by the plaintiffs. Overall, more time at trial was spent on these matters than those raised by the defendants as referred to above.
But for the unmeritorious defences of the defendants, I would have been inclined to give a very significant reduction on the costs to be awarded in favour of the plaintiffs. However, I propose to lessen the reduction in light of some of the matters raised in the defence and pursued at trial.
Further, the context in which the questions of costs needs to be considered is that each of the plaintiffs and the defendants argued that the opposing parties owed money in the final settlement of the sale. The plaintiffs have been successful in establishing that the Purchasers owed a not insignificant amount to the plaintiffs.
Weighing each of the matters referred to above, as “a matter of impression and evaluation” and after considering the matters referred to in Chen v Chan (No 2),[24] I propose to award costs in favour of the plaintiffs as to 70 percent of their costs (including reserved costs), subject to the effect of the offer of compromise.[25]
[24]See par 27 above.
[25]I note the defendants also sought an award of indemnity costs, based principally on the matters referred to in paragraphs 30-34 above. An award of indemnity costs would not be appropriate in circumstances where, for the reasons set out above, the plaintiffs should receive 70 percent of their costs. As to the relevant principles concerning indemnity costs see, for example, Ugly Tribe Company Pty Ltd v Sikola [2001] VSC 189, [7]-[8] (Harper J).
C.6 Effect of the operative offer of compromise
It is clear that the offer of compromise of $400,000 made on 6 October 2015 by the defendants far exceeds the amount to be awarded in favour of the plaintiffs.
Rule 26.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) provides as follows:
(1)This Rule applies to an offer of compromise which has not been accepted at the time of verdict or judgment.
…
(3)Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders—
(a)the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 am on the second business day after the offer was served, taxed on the ordinarily applicable basis; and
(b)the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter taxed on the ordinarily applicable basis.
As may be seen, the court may make an order otherwise than in accordance with the rule. In light of the findings made above, I propose to apply the rule broadly, but in the following manner:
(1)The defendants pay 70 percent of the plaintiffs’ costs, including reserved costs, up to 11.00 am on 8 October 2015, on a standard basis.
(2)The plaintiffs pay the defendants’ costs thereafter on a standard basis.
Such an order reflects the operation of the rule, adjusted to the particular circumstances of this case.
D. Stay application
Finally, the defendants submitted a stay of the final orders should be granted as it was highly likely the plaintiffs were impecunious.
In June 2014, when a security for costs application was made against the plaintiffs, the court accepted that there was credible testimony for reason to believe that the plaintiffs would be unable to pay the costs of the defendants if the defendants were successful in their defence of the proceeding.[26] The defendants submitted it is likely nothing has materially changed since that time. No submissions were made by the plaintiffs to suggest their financial position was other than as submitted by the defendants.
[26]ACN 006 577 162 Pty Ltd v Beauville Pty Ltd [2014] VSC 298, [7] (Derham AsJ).
Based on the financial position of the plaintiffs, the defendants submitted that there should be a stay of the judgment in favour of the plaintiffs. This was put on the basis that if the defendants were to pay the plaintiffs the judgment sum, and then, if costs were due and payable to the defendants, either by later agreement or after taxation, it would be unlikely that the defendants would recover those costs. I invited the defendants’ counsel to provide any authority on point to support the application. None was forthcoming. The position is straightforward. The plaintiffs are, prima facie, entitled to the fruits of their litigation.[27]
[27]Supreme Court Rules, r 66.16; Luxmore Pty Ltd v Hydedale Pty Ltd (2008) 20 VR 481, 484 [15] (Maxwell P and Kellam JA).
In my opinion, no stay should be granted. Pursuant to the Judgment and these reasons, $281,378.81 is due and payable now. The same cannot be said in relation to any amount of costs that may be due to the defendants. Further, based on the orders to be made in line with these reasons, in the absence of evidence of the competing costs claims, there can be no certainty that, after the taxation or agreement between the parties, funds will be owing to the defendants in excess of the amount of the sum awarded. In short, there are no circumstances that would warrant a stay being granted.
E. Conclusion
Accordingly, orders will be made as follows:
1.Schedule 1 to the Engineering Sale Agreement (as defined in paragraph 2 of the judgment delivered in this proceeding on 8 March 2016) is rectified so that the reference to the total sum of “$3,600,413” is replaced with “$3,699,413”.
2.Judgment for the plaintiffs in the sum of $281,378.81 (which includes interest on the sum of $113,835.44).
3. The proceeding is otherwise dismissed.
4.The defendants pay 70 percent of the plaintiffs’ costs, including reserved costs, up to 11.00 am on 8 October 2015, on a standard basis.
5. The plaintiffs pay the defendants’ costs thereafter on a standard basis.
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