Jalmoon Pty Ltd (in liq) v Bow - [1997] QCA 271

IN THE COURT OF APPEAL	[1997] QCA 271
SUPREME COURT OF QUEENSLAND

Appeal No. 49 of 1995.

Brisbane
[Jalmoon P/L (in Liq.) v. Bow]

BETWEEN:

JALMOON PTY LTD (IN LIQUIDATION)

(Plaintiff) Appellant

AND:

KEITH ROBERT BOW

(Defendant) Respondent

___________________________________________________________________

Pincus J.A. Ambrose J. Helman J.

___________________________________________________________________________

Judgment delivered 13 December 1996

Further Order delivered 5 September 1997

Reasons for Further Order of the Court

___________________________________________________________________________

JUDGMENT FOR $108,905.00 GIVEN ON 13 DECEMBER 1996 REPLACED BY
ONE FOR $222,977.76 WITH COSTS HERE AND BELOW.
___________________________________________________________________________

CATCHWORDS: INTEREST - whether compound interest should be awarded - whether interest to be reduced because delay in obtaining judgment was fault of appellant - whether interest to be awarded up to date of Appellate Court judgment.

Counsel:	Mr R Bain Q.C. for the appellant. Mr J McKenna for the respondent.
Solicitors:	Stephens & Tozer for the appellant Allen Allen & Hemsley (formerly Feez Ruthning) for the respondent.
Hearing date:	14 July 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 49 of 1995.

Brisbane

Before Pincus J.A.
Ambrose J.

Helman J.

[Jalmoon P/L (in Liq.) v. Bow]

BETWEEN:

JALMOON PTY LTD (IN LIQUIDATION)

(Plaintiff) Appellant

AND:

KEITH ROBERT BOW

(Defendant) Respondent

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 13 December 1996
Further Order delivered 5 September 1997

Judgment in this matter was delivered on 13 December 1996 and the parties were invited to make submissions with respect to interest. These were delivered rather belatedly, but it seems desirable to deal with the problem raised; it is not intended to repeat the explanation of the nature of the case included in our previous reasons.

The appellant’s contention is that compound interest should be awarded, but this is entirely in the discretion of the Court: Jacobs’ Law of Trusts in Australia, 6th Ed., p. 667. The present does not appear to us to be a case in which such an award would be appropriate; there was no suggestion of dishonest conduct on the part of the respondent, nor did the respondent in any way profit from the breaches he committed.

The parties are agreed on 12% as the proper rate of interest and the question is to what extent the period for which interest should be allowed must suffer a reduction. The respondent’s contention is that interest should be allowed for only 2.9 years, whereas the appellant claims interest for a period in excess of 12 years. The difference between the two is essentially that the respondent contends that all but 2.9 years of the delay in obtaining judgment was the fault of the appellant. We have no formal evidence before us as to the cause of the delay, but the parties have made assertions and counter-assertions on this subject; since neither side objected to this course, it appears that we should take these assertions into account.

It is conceded by the appellant that the then liquidator, a Mr Bubke, discovered the possibility 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.

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Details

Case: [1997] QCA 271
Decision Date: 5/09/1997

CaseChat Overview and Summary

In the case of Jalmoon Pty Ltd (in liquidation) v. Bow, the Supreme Court of Queensland dealt with an appeal concerning the determination of interest in a legal dispute. The appellant, Jalmoon Pty Ltd, in liquidation, sought to recover damages from the respondent, Keith Robert Bow, for breaches of fiduciary duty and breaches of the Companies Act. The initial judgment awarded $108,905.00 to the appellant, but the matter was brought before the Court of Appeal to resolve the issue of interest, specifically whether compound interest should be awarded and the period for which interest should be calculated.

The court examined the issue of whether compound interest should be awarded, noting that such an award lies within the court's discretion. The court concluded that compound interest was not appropriate in this case due to the absence of dishonest conduct or profit gained by the respondent from the breaches. The parties agreed on a 12% interest rate, but differed on the duration for which interest should be calculated. The appellant sought interest for over 12 years, while the respondent argued for a reduction to 2.9 years, attributing most of the delay to the appellant. The court reviewed the submissions and determined that a deduction of three years should be made for the delay in initiating proceedings, but no further deductions were necessary for other delays attributed to the respondent. The court found it fair to allow interest for a total of eight years, from the time of the breaches to the date of the appellate judgment.

The court further considered the period for which interest should be calculated post-judgment. It noted that in cases where a plaintiff succeeds on appeal, including interest up to the date of the appellate judgment aligns with established legal authority. The court calculated the interest at 12% from the date of the initial judgment up to the date of the appellate judgment, adding this amount to the previous judgment. Consequently, the total judgment was set at $222,977.76, replacing the earlier judgment of $108,905.00, with costs awarded both in the trial court and the Court of Appeal.

Orders