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Hosking v Ipex Software Services Pty Ltd (No 2)

Hosking v Ipex Software Services Pty Ltd (No 2)

Case [2004] VSC 343 13 September 2004

Limitation Periods

Compensatory Damages

Interest

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
COMMERCIAL LIST

No. 2024 of 1997

MARK HOSKING	Plaintiff
v
IPEX SOFTWARE SERVICES PTY LTD (ACN 056 165 309) AND OTHERS	Defendants

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JUDGE:	HABERSBERGER J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 SEPTEMBER 2004
DATE OF JUDGMENT:	13 SEPTEMBER 2004
CASE MAY BE CITED AS:	HOSKING v IPEX SOFTWARE SERVICES PTY LTD [NO. 2]
MEDIUM NEUTRAL CITATION:	[2004] VSC 343

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Practice and Procedure – Interest – Damages assessed as at 30 June 2002 rather than at date of breach – Whether plaintiff entitled to interest from date of commencement of proceeding (27 March 1997) or only from 30 June 2002 – Whether "good cause" to the contrary had been shown – Section 60(1) of the Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C.M. Scerri QC with Mr C.J. Horan	Vadarlis & Associates
For the Defendants	Mr J.W.K. Burnside QC with Mr J.D.S. Barber	Arnold Bloch Leibler

HIS HONOUR:

On 25 August 2004 I published my reasons for judgment in respect of my assessment of the plaintiff's claim for damages in this proceeding at $1,545,650.[1] I adjourned the questions of interest and costs to give the parties the opportunity to consider my reasons and prepare their submissions. On 3 September 2004 I heard argument on the question of interest and reserved my decision.
[1][2004] VSC 299

The plaintiff submitted that he was entitled to interest at the penalty interest rate from the date of the commencement of the proceeding, 27 March 1997, to the date of the judgment. The defendants submitted that the plaintiff was entitled to interest only from 30 June 2002, being the date which the Court had fixed for the assessment of damages. How this came about is explained in paragraphs 61 to 70 of my earlier judgment.

Although the parties were diametrically opposed on this issue of interest, they did reach agreement on the two calculations of the amount of interest at the penalty interest rate from time to time. If the plaintiff's submissions are upheld, the amount of interest from 27 March 1997 to 13 September 2004, being the day on which judgment will be entered, was agreed to be $1,391,584.69. On the other hand, if the defendants' submissions are upheld, it was agreed that the amount of interest from 30 June 2002 to 13 September 2004 was $391,938.73. On any view, therefore, the question of whether the plaintiff is entitled to interest in respect of the period between 27 March 1997 and 30 June 2002 is quite significant.

Mr Scerri QC, who appeared with Mr Horan of counsel for the plaintiff, submitted that this situation was governed by s.60(1) of the Supreme Court Act 1986, which reads as follows:

"The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate 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.

Continue reading Hosking v Ipex Software Services Pty Ltd (No 2)

Details

AGLC: Hosking v Ipex Software Services Pty Ltd (No 2) [2004] VSC 343
Case: [2004] VSC 343
Decision Date: 13 September 2004

CaseChat Overview and Summary

In the case of Hosking v Ipex Software Services Pty Ltd (No 2), the dispute involved the calculation of interest on damages awarded to the plaintiff. The matter was heard in the Supreme Court of Queensland. The plaintiff, Hosking, sought interest on the damages from the date of the commencement of the proceeding, while the defendant, Ipex Software Services, argued that interest should only be calculated from the date of assessment of damages, being 30 June 2002.

The central legal issue before the court was whether the plaintiff was entitled to interest from the date of the commencement of the proceeding, 27 March 1997, or only from the date of the assessment of damages, 30 June 2002. This issue was examined in light of section 60(1) of the Supreme Court Act 1986, which provides that interest shall be calculated from the date of the commencement of the proceeding unless good cause is shown to the contrary. The court was required to determine whether the defendant had demonstrated sufficient grounds to warrant interest being calculated from a later date.

The court found that the assessment of damages was delayed due to the complexity of the case, and the defendant had not demonstrated any significant prejudice caused by the delay. The court concluded that the defendant had not shown good cause to justify interest being calculated from 30 June 2002 instead of the date of commencement of the proceeding. Accordingly, the plaintiff was entitled to interest from 27 March 1997. The court ruled in favour of the plaintiff on this point, and the interest was calculated from the earlier date.

As a result of the court's decision, the final orders included that the plaintiff was entitled to interest on the damages from 27 March 1997, and the defendant was directed to pay the interest calculated accordingly. This ruling clarified the application of section 60(1) of the Supreme Court Act 1986 in the context of interest on damages, emphasising the need for the defendant to show good cause to alter the default position of interest from the date of commencement of the proceeding.

Orders