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Lahoud v Lahoud

Lahoud v Lahoud

Case [2011] NSWCA 405 19 December 2011

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Lahoud & Anor v Lahoud & Ors [2011] NSWCA 405
Hearing dates: 11/10/2011
Decision date: 19 December 2011
Before: Giles JA, Handley AJA, Sackville AJA
Decision:
(1) Appeal allowed in part;
(2) Set aside order 1(a) of 14 and 17 December 2010 and in lieu thereof substitute judgment for pre-judgment interest in the amount of $6,365.95 with effect from 10 November 2010.
(3) Set aside order 3 of 14 December 2010 in so far as it related to the costs of the relevant proceedings and remit all questions relating to those costs to Ward J. Order 3 otherwise confirmed.
(4) Appeal otherwise dismissed.
(5) Cross-appeal dismissed.
(6) The Victor Lahoud interests are to pay one third of the Joseph Lahoud interests' costs of the appeal and cross-appeal
(7) The JosephLahoud parties are to pay the costs of the fourth respondent as a submitting respondent, but such costs are not part of their costs payable by the Victor Lahoud parties under Order (6).
[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: Interest - pre-judgment - Civil Procedure Act s 100(1) - joint-venture - moneys payable under contract pursuant to auditor's report - no cause of action until report - interest ordered from date of report.
Legislation Cited: Civil Procedure Act, s 100
Cases Cited: Bloch v Bloch [1981] HCA 56; 180 CLR 390
Board of Trade v Cayzer Irvine & Co Ltd [1927] AC 610
Caledonian Insurance Co v Gilmour [1893] AC 85
Crisp & Gunn Co-Operative Ltd v Hobart Corporation [1963] HCA 55; 110 CLR 538
Frankston & Hastings Corporation v Cohen [1960] HCA 6; 103 CLR 607
McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457
Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428
Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520
Category: Principal judgment
Parties: 1st Appellant - Joseph Lahoud
2nd Appellant - Joseph Lahoud & Associates Pty Ltd
1st Respondent - Victor Lahoud
2nd Respondent - Castle Constructions Pty Ltd
3rd Respondent - Solidare Pty Ltd
4th Respondent - Alfred Stephen Roger
Representation: Appellants - IM Neil SC
1st, 2nd & 3rd Respondents - M Einfeld QC with Phillips
4th Respondent - I Congdon
1st & 2nd Appellants - Varekers Lawyers
1st, 2nd & 3rd Respondents - McLachlan Thorpe Partners
4th Respondent - Ian Congdon

File Number(s): 2007/255809
Decision under appeal

Citation:

[2010] NSWSC 1297

Before:

Ward J

File Number(s):

2007/255809

HEADNOTE

Disputes between parties to a joint-venture led to proceedings in the Industrial Relations Commission which…

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 Lahoud v Lahoud

Details

AGLC: Lahoud v Lahoud [2011] NSWCA 405
Case: [2011] NSWCA 405
Decision Date: 19 December 2011

CaseChat Overview and Summary

The appeal concerned a dispute between Joseph Lahoud and Victor Lahoud regarding moneys payable under a joint venture contract, as determined by an auditor's report. The proceedings were before the Court of Appeal of New South Wales.

The primary legal issue before the court was the date from which pre-judgment interest should be awarded, pursuant to section 100(1) of the Civil Procedure Act. Specifically, the court had to determine whether a cause of action for the moneys payable under the contract arose before or after the auditor's report was finalised.

The court reasoned that no cause of action existed until the auditor's report was issued, as the contract stipulated that the moneys payable were to be determined by that report. Therefore, pre-judgment interest was ordered to run from the date of the auditor's report. The appeal was allowed in part, with the order for pre-judgment interest being varied to reflect this commencement date. The court also remitted questions relating to the costs of certain proceedings.

Orders

Orders of the court

(1) Appeal allowed in part;

(2) Set aside order 1(a) of 14 and 17 December 2010 and in lieu thereof substitute judgment for pre-judgment interest in the amount of $6,365.95 with effect from 10 November 2010.

(3) Set aside order 3 of 14 December 2010 in so far as it related to the costs of the relevant proceedings and remit all questions relating to those costs to Ward J. Order 3 otherwise confirmed.

(4) Appeal otherwise dismissed.

(5) Cross-appeal dismissed.

(6) The Victor Lahoud interests are to pay one third of the Joseph Lahoud interests' costs of the appeal and cross-appeal

(7) The JosephLahoud parties are to pay the costs of the fourth respondent as a submitting respondent, but such costs are not part of their costs payable by the Victor Lahoud parties under Order (6).

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Lahoud v Lahoud [2011] NSWCA 405

Most Recent Citation

Ball v Brydens Lawyers Pty Ltd [2018] NSWLC 23

Cases citing this decision · 7 of 7 shown

Dursco Property Pty Ltd t/a Dursco Property Trust v Cecil
[2025] NSWSC 234

…ina Developments Pty Ltd v John Anothony Areana Pty Ltd [2022] NSWSC 57 Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8 Lahoud v Lahoud [2011] NSWCA 405 Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681 Nine Network Australia Pty Ltd v Birketu Pty Ltd [2016] NSWSC 694 Re Minister for Immigration and Ethn…
Ball v Brydens Lawyers Pty Ltd
[2018] NSWLC 23 Para 62

…The decision of the Court of Appeal in Lahoud & Anor v Lahoud & Ors [2011] NSWCA 405 confirms that interest is payable pursuant to s 100 CPA on proceedings for the recovery of money (proceedings for specific performance were held not to be proceedings for recovery of money). The interest is payable on the claim mad…
Sharp v Maritime Super Pty Ltd
[2013] NSWSC 389 Para 1

…the trustee that had not been made as at the time of the judgment (in the same way that the cause of action for recovery of moneys in Lahoud v Lahoud [2011] NSWCA 405 did not accrue until the audit was complete). However, as ultimately pressed, the claim for interest was for interest to be awarded on equitable prin…
Guilfoyle Developments Pty Ltd v Geoffrey Craig Frumar
[2012] NSWSC 1455 Para 1

…Lahoud v Lahoud [2011] NSWCA 405 concerned a claim for pre-judgment interest under s 100(1) on an amount ordered to be repaid in proceedings for specific performance of an agreement for an audit. With regard to the scope of s 100(1) Handley AJA (Giles JA, Sackville AJA agreeing) said:…
Lahoud v Lahoud (No 2)
[2012] NSWCA 55

…the Civil Procedure Act from the commencement of the specific performance proceedings in 2007. On 19 December 2011 this Court held in Lahoud v Lahoud [2011] NSWCA 405 that the cause of action for the recovery of the overpayment did not accrue until the audit was completed in 2010 and pre-judgment interest could onl…
Lahoud v Lahoud
[2012] NSWSC 284 Para 4

…al in relation thereto. Those appeals came before the Court of Appeal last year and, on 19 December 2011, the Court of Appeal delivered its judgment ([2011] NSWCA 405), allowing the appeal by the Joseph Lahoud parties in part and dismissing the cross-appeal by the Victor Lahoud parties. The aspect on which the Jose…
George v Webb
[2012] NSWSC 86 Para 1

…As noted in Lahoud v Lahoud [2011] NSWCA 405, the expression "proceedings for the recovery of money" or its equivalent has been described by the High Court in Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520 at [41]-[42] as a composite expression embracing any proceedings in which a cla…

View all 7 citing cases →

Cases cited in this decision · 11 of 11 shown

Lahoud v Lahoud
[2010] NSWSC 1297 Para 1

…HANDLEY AJA : This appeal and cross-appeal from decisions of Ward J of 10 November [2010] NSWSC 1297, 25 November and 14 December 2010 is the latest round in a saga of litigation between brothers which began in 1999 when the Joseph Lahoud interests commenced proceedings against the Victor Lahoud interests in the Ind…
Lahoud v Lahoud
[2009] NSWSC 623 Para 1

…On 31 July 2009 Ward J [2009] NSWSC 623 ordered the Joseph Lahoud interests to perform and carry into effect the agreement for an audit (blue 1/156). Order 3 declared:…
Victorian Workcover Authority v Esso Australia Ltd
[2001] HCA 53 Para 1

…d sale of land: Bloch v Bloch [1981] HCA 56; 180 CLR 390; and for enforcing a statutory indemnity: Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520.…
Bloch v Bloch
[1981] HCA 56 Para 1

…Hobart Corporation [1963] HCA 55; 110 CLR 538, for a declaration of entitlement to a share of the proceeds of a completed sale of land: Bloch v Bloch [1981] HCA 56; 180 CLR 390; and for enforcing a statutory indemnity: Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520.…
Crisp & Gunn Co-operative Ltd v Hobart Corporation
[1963] HCA 55 Para 1

…ings for a salvage award: The Aldora [1975] QB 748; for compensation for a compulsory acquisition: Crisp & Gunn Co-Operative Ltd v Hobart Corporation [1963] HCA 55; 110 CLR 538, for a declaration of entitlement to a share of the proceeds of a completed sale of land: Bloch v Bloch [1981] HCA 56; 180 CLR 390; and…
McDonald v Dennys Lascelles Ltd
[1933] HCA 25 Para 1

…also sue for the purchase money or an instalment thereof it was payable on a fixed date independently of completion: McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457, 475-6 per Dixon J.…
Frankston & Hastings Corporation v Cohen
[1960] HCA 6 Para 1

…er an order of the Court. An audit involves the examination and verification of accounts prepared by others: Frankston & Hastings Corporation v Cohen [1960] HCA 6; 103 CLR 607, 617. The audit by Mr Roger necessarily involved the selection of an appropriate set of accounts to form the starting point. This was pa…
[1927] AC 610
[1927] AC 610 Para 1

…The position in an arbitration under a Scott v Avery clause is analogous. Board of Trade v Cayzer Irvine & Co Ltd [1927] AC 610 established that in such a case time does not run for limitation purposes until the award because until then there is no cause of action. At p 616 Viscount Dunedin adopted this statemen…
[1975] QB 748
[1975] QB 748 Para 1

…e expression "proceedings for the recovery of money" in s 100 or its equivalent have been held to include proceedings for a salvage award: The Aldora [1975] QB 748; for compensation for a compulsory acquisition: Crisp & Gunn Co-Operative Ltd v Hobart Corporation [1963] HCA 55; 110 CLR 538, for a declaration of e…
[1893] AC 85
[1893] AC 85 Para 1

…cause until then there is no cause of action. At p 616 Viscount Dunedin adopted this statement of Lord Herschell in Caledonian Insurance Co v Gilmour [1893] AC 85, 90:…
[1947] AC 428
[1947] AC 428 Para 1

…ciple is expressed in general terms, and its generality was confirmed in Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428 at 435-6 per Lord Thankerton. The certificate of the appellant's marine surveyor under a contract for the repair of a ship was a condition precedent…

Legislation cited in this decision · 1

Civil Procedure Act 2005 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Lahoud & Anor v Lahoud & Ors [2011] NSWCA 405
Hearing dates:	11/10/2011
Decision date:	19 December 2011
Before:	Giles JA, Handley AJA, Sackville AJA
Decision:	(1) Appeal allowed in part; (2) Set aside order 1(a) of 14 and 17 December 2010 and in lieu thereof substitute judgment for pre-judgment interest in the amount of $6,365.95 with effect from 10 November 2010. (3) Set aside order 3 of 14 December 2010 in so far as it related to the costs of the relevant proceedings and remit all questions relating to those costs to Ward J. Order 3 otherwise confirmed. (4) Appeal otherwise dismissed. (5) Cross-appeal dismissed. (6) The Victor Lahoud interests are to pay one third of the Joseph Lahoud interests' costs of the appeal and cross-appeal (7) The JosephLahoud parties are to pay the costs of the fourth respondent as a submitting respondent, but such costs are not part of their costs payable by the Victor Lahoud parties under Order (6). [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:	Interest - pre-judgment - Civil Procedure Act s 100(1) - joint-venture - moneys payable under contract pursuant to auditor's report - no cause of action until report - interest ordered from date of report.
Legislation Cited:	Civil Procedure Act, s 100
Cases Cited:	Bloch v Bloch [1981] HCA 56; 180 CLR 390 Board of Trade v Cayzer Irvine & Co Ltd [1927] AC 610 Caledonian Insurance Co v Gilmour [1893] AC 85 Crisp & Gunn Co-Operative Ltd v Hobart Corporation [1963] HCA 55; 110 CLR 538 Frankston & Hastings Corporation v Cohen [1960] HCA 6; 103 CLR 607 McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457 Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428 Victorian Workcover Authority v Esso Australia Ltd [2001] HCA 53; 207 CLR 520
Category:	Principal judgment
Parties:	1st Appellant - Joseph Lahoud 2nd Appellant - Joseph Lahoud & Associates Pty Ltd 1st Respondent - Victor Lahoud 2nd Respondent - Castle Constructions Pty Ltd 3rd Respondent - Solidare Pty Ltd 4th Respondent - Alfred Stephen Roger
Representation:	Appellants - IM Neil SC 1st, 2nd & 3rd Respondents - M Einfeld QC with Phillips 4th Respondent - I Congdon 1st & 2nd Appellants - Varekers Lawyers 1st, 2nd & 3rd Respondents - McLachlan Thorpe Partners 4th Respondent - Ian Congdon
File Number(s):	2007/255809
Decision under appeal	Citation: [2010] NSWSC 1297 Before: Ward J File Number(s): 2007/255809