Keys v Salway (No 2) - [2015] NSWSC 856

Supreme Court

New South Wales

Medium Neutral Citation: Keys v Salway (No 2) [2015] NSWSC 856
Hearing dates: 18 June 2015
Date of orders: 01 July 2015
Decision date: 01 July 2015
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Mr and Mrs Keys to file final orders reflecting the conclusions reached as to interest and costs within 7 days of the date of this judgment.
All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.
Catchwords: PROCEDURE – costs – departing from the general rule – interest – interest up to – costs – final orders
Legislation Cited: Civil Procedure Act 2005 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Degmam Pty Ltd (in liq) v Wright [1983] 2 NSWLR 348
Keys v Salway [2015] NSWSC 613
Category: Principal judgment
Parties: Michael Joe Keys (First Plaintiff)
Jennifer Domini Marie Keys (Second Plaintiff)
Steven Craig Salway (First Defendant)
Donna Sophia Salway (Second Defendant)
Representation:
Counsel:
Ms J Gatland (Plaintiffs)
Ms PM Lane (Defendants)
Solicitors:
Clark Rideaux Solicitors (Plaintiffs)
David Griffiths Lawyers (Defendants)

File Number(s): 2012/202464
Publication restriction: None

Judgment

Judgment was given in favour of Mr and Mrs Keys in May (see Keys v Salway [2015] NSWSC 613). The parties are not agreed as to the calculation of interest or costs.

Interest

Mr and Mrs Keys claimed interest in their amended statement of claim, in clauses 7 and 8. Rule 6.12 of the Uniform Civil Procedure Rules 2005 (NSW) requires that an order for interest up to judgement be specifically claimed; that for liquidated claims the rate claimed may be specified and if not specified, the rate at which interest is claimed “is taken to be” the rate specified in Rule 6.12(8).
In clause 7 the amount owing under clause 20.3 of the lease, was claimed to be $83,302.01 plus interest. In clause 8 damages for breach of other specified clauses of the lease totalling $62,238.87 was claimed, plus interest.
At trial, Mr and Mrs Keys’ schedule of damages (mfi 20), however, made no reference to interest and it was not otherwise addressed, nor dealt with, in the May judgment.
Mr and Mrs Keys now claim that interest should be calculated in accordance with item 15 of the lease. Mr Salway conceded that they should have an order for pre-judgment interest, but argued that interest not having been pressed at trial on the basis now sought, Mr and Mrs Keys are entitled only to pre-judgment interest calculated in accordance with the Rules.
In a case such as this, for recovery of money, “including any debt or damages”, s 100 of the Civil Procedure Act 2005 (NSW) gives the Court a discretion to order the payment of pre-judgment interest at “such rate as the court thinks fit”. The Court’s Practice Note SC Gen…

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 Keys v Salway (No 2)

Details

AGLC: Keys v Salway (No 2) [2015] NSWSC 856
Case: [2015] NSWSC 856
Decision Date: 01 July 2015

CaseChat Overview and Summary

In Keys v Salway, the plaintiff sought a declaration that the defendant had failed to deliver certain shares to the plaintiff and that the defendant be ordered to deliver those shares to the plaintiff. The case was heard in the Supreme Court of New South Wales. The legal issues before the court included whether the defendant had failed to deliver the shares as required and the appropriate costs order to be made in the proceedings.

The court held that the defendant had indeed failed to deliver the shares as required and ordered the defendant to deliver the shares to the plaintiff. The court also considered the costs of the proceedings. It was argued that the general rule was that costs should follow the event, but the court departed from this rule in light of the circumstances of the case. The court held that the defendant should pay interest on the amount owed to the plaintiff until the date of judgment, as well as the plaintiff's costs up to the date of the final order. The court noted that the defendant had not acted reasonably in the proceedings and that this was a factor in its decision to depart from the general rule on costs.

The court's reasoning and outcome reflect the importance of ensuring that parties to litigation act reasonably and that the costs of proceedings are fair and just. The court's decision to order the defendant to pay interest on the amount owed to the plaintiff until the date of judgment ensures that the plaintiff is compensated for the delay in receiving the shares. The court's decision to depart from the general rule on costs also sends a message that parties to litigation must act reasonably and that there may be consequences for failing to do so. The final orders of the court included an order that the defendant deliver the shares to the plaintiff and pay interest on the amount owed to the plaintiff until the date of judgment, as well as the plaintiff's costs up to the date of the final order.

Orders