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Hartley Poynton Ltd v Ali

Hartley Poynton Ltd v Ali

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Case Copied 18 March 2005 76 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 2039 of 1999

HARTLEY POYNTON LTD.
	Appellant
v.
LIYAKAT ALI (as Executor and Trustee of the Estate of RAHMAT ALI)	Respondent

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JUDGES:	ORMISTON, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 & 21 April 2004
DATE OF JUDGMENT:	18 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 53

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PRACTICE AND PROCEDURE – Judgments and Orders – Power to give judgment nunc pro tunc and generally to antedate orders – Effect of death on cause of action and on conduct of proceedings – Addition of rules as to abatement – Claim in negligent misstatement, breach of contract etc. – Damages to be awarded included $260,000 punitive damages – Plaintiff died between end of argument and delivery of judgment (in April 2002) – Effect of sub-s.2(a) of s.29 of Administration of Probate Act 1958 – Judgment given “to bear date and take effect from 16 October 2001” (being last day of argument) – Whether proper to do so – Effect of principle said to be laid down in Turner v. London and South-Western Railway Co. (1874) L.R. 17 Eq. 561 – Whether should be applied to alter substantive rights.

DAMAGES – By way of interest – Award of damages including damages for loss of opportunities – Order for repayment of sum invested – Interest payable on repayable sums – Whether proper to order interest also on damages for loss of opportunities – How interest should be calculated for periods up to date of judgment.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M.D. Wyles	Phillips Fox
For the Respondent	Mr J.M. Selimi	Buxton & Assoc.

ORMISTON, J.A.:

This appeal by the defendant from a judgment of Smith, J.[1], whereby his Honour ruled in favour of the executor of the deceased plaintiff Rahmat Ali with respect to the antedating of and the interest payable on a judgment for damages (including exemplary damages) awarded by his Honour in an action for negligent misrepresentation and related claims arising out of the deceased plaintiff’s share trading through the appellant, raises two issues. The second of the issues relating to the calculation of interest is primarily concerned with an analysis of his Honour’s award of damages. The first issue, however, though on the surface technical, raises questions of some importance both as to the effect of death on parties’ rights and, more importantly, as to the power of the Court to antedate its judgments. These questions arise in the context of a proceeding where the plaintiff died between the reservation of judgment and its delivery and where, as for the last 60 years, the restrictions on the right of the personal representatives to sue and continue proceedings in the name of deceased persons have been modified by what is now s.29 of the Administration and Probate Act 1958 which, while removing the bar on such proceedings, qualifies (inter alia) the resultant rights of estates of deceased persons by providing that the damages recoverable “shall not…

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.

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Details

Case: [2005] VSCA 53
Decision Date: 18 March 2005

CaseChat Overview and Summary

Hartley Poynton Ltd was the defendant in a case brought by Ali, who claimed damages for negligent misstatement, breach of contract, and other related issues. The case was heard in the Supreme Court of Victoria. The central dispute in the case revolved around the defendant's liability and the extent of the damages to be awarded, which included $260,000 in punitive damages. The plaintiff, Ali, passed away before the judgment was delivered in April 2002, raising questions about the effect of the death on the cause of action and the conduct of the proceedings.

The court had to address several legal issues, including the power to give judgment nunc pro tunc and generally to antedate orders. It also needed to consider the impact of the plaintiff's death on the proceedings and the applicability of sub-section 2(a) of section 29 of the Administration of Probate Act 1958. Additionally, the court had to determine whether the principle laid down in Turner v. London and South-Western Railway Co. (1874) L.R. 17 Eq. 561 should be applied to alter the substantive rights in the case. Another issue was whether it was proper to order interest on damages for loss of opportunities and how interest should be calculated for periods up to the date of judgment.

The court decided that the judgment should bear the date of the last day of argument, 16 October 2001, and take effect from that date. It held that the principle in Turner v. London and South-Western Railway Co. should not be applied to alter the substantive rights. The court also ruled that it was proper to order interest on damages for loss of opportunities, and it specified how interest should be calculated for the periods up to the date of judgment. This decision ensured that the substantive rights of the parties were not altered by the procedural issues arising from the plaintiff's death.

The final orders of the court were that the judgment would bear the date and take effect from 16 October 2001. The court also ordered that interest should be payable on the damages for loss of opportunities and specified the calculation method for interest for periods up to the date of judgment. This ruling ensured that the proceedings could proceed fairly and justly despite the plaintiff's death.

Orders