This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Lahoud v Lahoud
Medium Neutral Citation:
[2012] NSWCA 401
Hearing Date(s):
20 September 2012
Decision Date:
11 December 2012
Before:
Meagher JA (at [1]), Barrett JA (at [2]), Tobias AJA (at [123])
Decision:
1. Appeal dismissed. 2. Order that the appellants pay the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PROCEDURE - judgments and orders - amending varying and setting aside - order for payment of interest - express reservation of further consideration - whether subsequent order may vary existing regime by removing entitlement to interest already accrued - INTEREST - order for payment of interest - rights thereunder - common law rule as to accrual of interest - APPEAL - review of factual findings - whether evaluation attended by error
Victor Lahoud - First Appellant Castle Constructions Pty Ltd - Second Appellant Solidaire Pty Ltd - Third Appellant Joseph Lahoud - First Respondent Joseph Lahoud & Associates - Second Respondent
Representation
- Counsel:
M L D Einfeld QC/J S Phillips - Appellants I M Neill SC - Respondents
[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
AGLC
Lahoud v Lahoud [2012] NSWCA 401
Case
[2012] NSWCA 401
Decision Date
CaseChat Overview and Summary
The appeal concerned an order for the payment of interest made by the primary judge in the Supreme Court of New South Wales. The appellants sought to argue that a subsequent order made by the same judge had effectively varied or set aside the earlier interest order, thereby removing their entitlement to interest that had already accrued.
The central legal issue before the Court of Appeal was whether the primary judge had the power to vary or set aside the earlier order for the payment of interest, particularly after it had been made and the appellants' entitlement to interest had accrued. This involved considering the court's inherent jurisdiction and the relevant Uniform Civil Procedure Rules 2005 concerning the amendment, variation, and setting aside of judgments and orders. The court also considered whether the primary judge's evaluation of the facts attended by error.
The Court of Appeal held that the primary judge's subsequent order did not have the effect of varying or setting aside the earlier order for the payment of interest. The court reasoned that once an order for interest had been made and the entitlement had accrued, it represented a vested right that could not be unilaterally removed by a subsequent order, absent specific grounds for setting aside or varying the original order under the rules or the court's inherent jurisdiction. The court found no error in the primary judge's evaluation of the facts.
The appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal.
Orders
Orders of the court
1. Appeal dismissed.
2. Order that the appellants pay the respondents' costs of the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]