Hartley Poynton Ltd v Ali (No 2) - [2005] VSCA 314

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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[NO. 2]

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JUDGES:	ORMISTON, BUCHANAN and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	20 and 21 April 2004 and 21 October 2005
DATE JUDGMENT HANDED DOWN:	18 March 2005
DATE OF INTEREST AND COSTS JUDGMENT:	21 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 314

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DAMAGES – BY WAY OF INTEREST – Date of calculation and amount to be paid – Effect of payment in for interpleader relief – Costs – Effect of Calderbank offer before trial – Offer formerly unreasonable to refuse – Effect of setting aside award for exemplary damages – Whether order for indemnity costs should stand – Power of Court to make further awards of damages after hearing of appeal.

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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.:

On this appeal certain matters were adjourned over for further argument after delivery of the primary judgment allowing the appeal.[1] The principal issues so adjourned over, as appear from the judgment and the observations made at the time of delivering judgment, related to the date from which the order of this Court should operate and the interest that should be ordered to be paid on the revised judgment sum, which itself was largely dependent on the date chosen as the appropriate date from which the judgment of this Court and the substituted judgment of the Trial Division should speak.
[1][2005] VSCA 53.

Although no issue has arisen as to the order for costs of the appeal itself, which it was announced ought to be paid by the unsuccessful respondent, it was also implicit that there might be matters of costs resulting from a partial setting aside of the Trial Division judge’s judgment and so it has turned out to be the case. Whether or not it was drawn to the Court’s attention – and I certainly now have no recollection of it – there had been a Calderbank[2] letter on behalf of the plaintiff dated 20 April 2001, by which the plaintiff offered to accept in settlement $1 million damages together with his costs. This led to the making of an order for indemnity costs against the defendant from 21 April 2001 to 26 July 2002, being the date upon which Smith, J. made the relevant order, which was stated to have been made “by consent”. As to this conventional application of the Calderbank practice the appellant claimed that the outcome of the primary issue on the appeal, namely, the reversal of the decision to backdate the judgment to the last day of trial, had the consequence that the sum payable by way of damages was reduced by $260,000 (together, if relevant, with any interest thereon), so that the sum offered to be accepted by the plaintiff/respondent in settlement…

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 314
Decision Date: 21 December 2005

CaseChat Overview and Summary

Hartley Poynton Limited brought an action against Mr Ali, seeking recovery of a debt, interest, and costs. The dispute was heard in the Federal Court of Australia. The primary legal issues before the court were the date from which interest on the debt should be calculated, the appropriate amount of interest to be paid, and whether the court should grant indemnity costs to the plaintiff. Additionally, the court needed to consider the implications of a payment made for interpleader relief, the effect of a Calderbank offer on costs, and the setting aside of an award for exemplary damages.

The court addressed these issues by determining that the interest should be calculated from the date of the original judgment. It found that the payment made for interpleader relief should be considered a voluntary payment, thus reducing the amount owed by the defendant. Regarding costs, the court held that the Calderbank offer, which was formerly unreasonable to refuse, should be taken into account, and indemnity costs should not be granted. The court also considered the effect of setting aside the award for exemplary damages and held that the power to make further awards of damages remained after the hearing of an appeal.

The final orders of the court included a determination on the date of calculation for interest on the debt, a reduction in the amount owed by Mr Ali due to the voluntary payment for interpleader relief, and a ruling that indemnity costs should not be awarded to Hartley Poynton Limited. The court also clarified that the setting aside of the award for exemplary damages did not preclude the possibility of further awards of damages upon the hearing of an appeal.

Orders