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Hodgson v Amcor Ltd (No 9)

Hodgson v Amcor Ltd (No 9)

Case [2012] VSC 205 17 May 2012

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9420 of 2004

JAMES GEORGE HODGSON	Plaintiff
v
AMCOR LIMITED (ACN 000 017 372)	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 APRIL 2012
DATE OF JUDGMENT:	17 MAY 2012
CASE MAY BE CITED AS:	HODGSON v AMCOR (No. 9)
MEDIUM NEUTRAL CITATION:	[2012] VSC 205

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JUDGMENT – Interest on judgment sum – Claim by successful plaintiff for an entitlement to be paid interest under the Penalty Interest Rates Act 1983(Vic) - Section 58 Supreme Court Act 1986 (Vic) – Whether “good cause to the contrary” for not awarding interest on the statutory basis – Whether rate of statutory interest a matter of discretion - On what sum is interest to be awarded - Whether tax payable on judgment sum to be taken into account - Whitlam v Insurance Australia Group Ltd [2005] NSWSC 200 (Einstein J) followed.

PRACTICE AND PROCEDURE – Interest on judgment sum – Claim by successful plaintiff for an entitlement to be paid interest under the Penalty Interest Rates Act 1983 (Vic) - Section 58 Supreme Court Act 1986 (Vic) – Whether “good cause to the contrary” for not awarding interest on the statutory basis – Whether rate of statutory interest a matter of discretion - On what sum is interest to be awarded – Whether tax payable on judgment sum to be taken into account - Whitlam v Insurance Australia Group Ltd [2005] NSWSC 200 (Einstein J) followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff (9420 of 2004)	Mr C Gunst QC with Mr P Booth	A.J. Macken & Co
For the Defendant (9420 of 2004)	Mr J D Elliott SC with Ms SB McNicol	Corrs Chambers Westgarth

HIS HONOUR:

Introduction

In the proceeding before the Court James George Hodgson v Amcor Limited and Amcor Limited & Others (Supreme Court Proceeding No. 9420 of 2004) (the “Hodgson Proceeding”), and following my decision in the proceeding which applied the slip rule, I subsequently heard submissions from the parties on the question of the claim by Mr Hodgson (“Hodgson”) for interest payable on the judgment sum. These reasons deal with that claim. [1]
[1] Hodgson v Amcor Limited (No 8) [2012] VSC 162 (27 April 2012).

Following delivery of the Reasons for Judgment on 20 March 2012 judgment was entered for Hodgson in the sum of $917,695. It is on that judgment debt which Hodgson claims interest pursuant to s 58 of the Supreme Court Act 1986 (Vic) (the “Supreme Court Act”) being the “Judgement Sum”.

Section 58 is in the following terms:

58. Interest to be allowed when debts or sums certain recovered
(1)If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the

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.

Continue reading Hodgson v Amcor Ltd (No 9)

Details

AGLC: Hodgson v Amcor Ltd (No 9) [2012] VSC 205
Case: [2012] VSC 205
Decision Date: 17 MAY 2012

CaseChat Overview and Summary

The case of Hodgson v Amcor Ltd (No 9) involved a dispute between the plaintiff, Hodgson, and the defendant, Amcor Ltd. The primary issue before the court was whether the plaintiff was entitled to interest on the judgment sum awarded under the Penalty Interest Rates Act 1983 (Vic) and, if so, the applicable rate, the amount of the sum on which interest would be calculated, and whether tax payable on the judgment sum should be taken into account. The case was heard in the Supreme Court of Victoria.

The court had to determine whether there was "good cause to the contrary" for not awarding interest on the statutory basis, whether the rate of statutory interest was a matter of discretion, on what sum interest should be awarded, and whether tax payable on the judgment sum should be considered. These questions were addressed by reference to the Penalty Interest Rates Act 1983 (Vic), the Supreme Court Act 1986 (Vic), and the precedent set in Whitlam v Insurance Australia Group Ltd [2005] NSWSC 200 (Einstein J).

The court ruled that there was no good cause to the contrary for awarding interest on the statutory basis, as per the Penalty Interest Rates Act 1983 (Vic). It held that the rate of statutory interest was not a matter of discretion and should be calculated according to the Act. The interest was to be awarded on the total judgment sum, including any costs, less any tax payable on the judgment sum. The court followed the precedent established in Whitlam v Insurance Australia Group Ltd [2005] NSWSC 200 (Einstein J) and concluded that the plaintiff was entitled to interest on the judgment sum.

The final orders of the court were that Amcor Ltd was to pay the plaintiff interest on the judgment sum in accordance with the Penalty Interest Rates Act 1983 (Vic), calculated on the total judgment sum less any tax payable on the judgment sum. The rate of interest was to be determined according to the Act, and no discretion was exercised in setting the rate.

Orders