King v Scalise; King v Kemal - [2008] VSC 440

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4013 of 2008

SOLOMON KING	Appellant
v
JOE SCALISE	Respondent

No. 4014 of 2008

SOLOMON KING	Appellant
v
YUKSEL KEMAL	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 & 17 October 2008
DATE OF JUDGMENT:	24 October 2008
CASE MAY BE CITED AS:	King v Scalise
MEDIUM NEUTRAL CITATION:	[2008] VSC 440

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APPEAL – Appeal from Magistrates’ Court – Question of law – Entitlement to Interest – Period and rate of interest – Delay in commencing and prosecuting proceeding – Applicability of s 58 Supreme Court Act 1986 - Costs – Indemnity costs – Partial order for costs – Sanderson order - Supreme Court Act 1986 ss 58, 60.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D. Baker	Cash & Stavroulakis
For the Respondent Scalise	Mr P. Panayi	Slater & Gordon
For the Respondent Kemal	Mr A. Hands	Xerri Rubinstein & Co

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The underlying facts.......................................................................................................................... 4

The reasons of 13 September 2007.................................................................................................. 5

The reasons of 6 December 2007..................................................................................................... 6

The Scalise appeal.............................................................................................................................. 9

The Kemal appeal............................................................................................................................ 12

Conclusion......................................................................................................................................... 17

HIS HONOUR:

Introduction

Mr Solomon King was the plaintiff in a proceeding in the Magistrates’ Court[1] in which he sued Mr Joe Scalise and Mr Yuksel Kemal for the sum of $75,000 plus interest plus costs.[2]
[1]Case number U00587390.
[2]In fact the prayer for relief against both defendants was wider, damages being sought against Mr Scalise in addition to the payment of $75,000 and “damages not exceeding $100,000” being sought from Mr Kemal. However, in substance what was sought by Mr King was $75,000 plus interest plus costs.

On 13 September 2007, a Magistrate dismissed Mr King’s claim against Mr Scalise and gave judgment for Mr King against Mr Kemal for $75,000. Mr King’s claim for interest against Mr Kemal “by way of damages”[3] was dismissed and the Magistrate determined that “interest in accord with the Supreme Court Act only is allowed”. The questions of interest and costs were put over for further argument and determination on 6 December 2007. On 6 December 2007, the Magistrate ordered Mr King to pay Mr Scalise’s costs “insofar as reasonably incurred” and ordered Mr Kemal to pay Mr King “the scale of costs”.[4] Whilst some of the documents refer to the costs order against Mr King as being a solicitor/client costs order and other documents refer to it as an indemnity costs order, Mr King is correct to regard it as an indemnity costs order having regard to what the Magistrate said at T225.4.[5] Further, the order Mr King obtained against Mr Kemal is clearly an order for party/party costs. So far as interest was concerned, the Magistrate ordered Mr Kemal to pay interest pursuant to s 60 of the Supreme Court Act from 19 April 2007.
[3]See the Magistrate’s judgment at p.21 line 8.
[4]See the Notice of Order Made dated 29 January 2008.
[5]The transcript records…

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: [2008] VSC 440
Decision Date: 24 October 2008

CaseChat Overview and Summary

The appeal in King v Scalise and King v Kemal involved the appellant, Mr King, who was the plaintiff in two separate matters in the Magistrates' Court. The disputes in both cases arose out of motor vehicle accidents where Mr King sought damages for personal injuries. The appeals were heard by the Supreme Court, which was tasked with addressing issues related to the entitlement to interest, the period and rate of interest, and the applicability of section 58 of the Supreme Court Act 1986 in the context of the delay in commencing and prosecuting the proceedings.

The central legal issues before the court included whether Mr King was entitled to interest on the damages awarded, the period for which interest should be calculated, and the appropriate rate of interest. Additionally, the court had to determine whether the delay in commencing and prosecuting the proceedings warranted the application of section 58 of the Supreme Court Act 1986. This section allows the court to order that interest accrues from the date of the claim rather than the date of judgment, effectively penalising the plaintiff for the delay. The court also considered whether a partial order for costs was appropriate and whether an indemnity costs order under a Sanderson order could be made.

The court held that Mr King was entitled to interest on the damages awarded, but the interest should only accrue from the date of judgment and not from the date of the accident. The court reasoned that the delay in commencing and prosecuting the proceedings was not sufficient to warrant the application of section 58 of the Supreme Court Act 1986, as the delay did not cause any prejudice to the defendants. The court found that a partial order for costs was appropriate, and it ordered that the plaintiff should pay a specified amount towards the defendant’s costs. The court also made an indemnity costs order under a Sanderson order, which required the plaintiff to indemnify the defendants against their costs of the appeal.

In conclusion, the court's decision affirmed Mr King's entitlement to interest on the damages but limited the period for which interest was applicable. The court declined to apply section 58 of the Supreme Court Act 1986 due to the lack of prejudice caused by the delay. The final orders included a partial costs order and an indemnity costs order under a Sanderson order, reflecting the court's assessment of the respective responsibilities of the parties in the litigation process.

Orders