Lavrick v Lease Auto Pty Ltd (No.2)

[2002] FCA 705

FEDERAL COURT OF AUSTRALIA

Lavrick v Lease Auto Pty Ltd (No.2)

[2002] FCA 705

ROBERT LAVRICK v  LEASE AUTO PTY LTD & BUDGET RENTACAR AUSTRALIA PTY LTD AND BETWEEN BUDGET RENTACAR AUSTRALIA PTY LTD & LEASE AUTO PTY LTD AND BETWEEN LEASE AUTO PTY LTD & TRANSPORT ACCIDENT COMMISSION & FAI GENERAL INSURANCE CO. LTD

S.12 of 1999

MANSFIELD J
24 MAY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.12 OF 1999

BETWEEN:

ROBERT LAVRICK
APPLICANT

AND:

LEASE AUTO PTY LTD (ACN 007 163 975)
FIRST RESPONDENT

BUDGET RENTACAR AUSTRALIA PTY LTD
(ACN 007 348 021)
SECOND RESPONDENT

AND BETWEEN:

BUDGET RENTACAR AUSTRALIA PTY LTD
(ACN 007 348 021)
FIRST CROSS-CLAIMANT

AND

LEASE AUTO PTY LTD (ACN 007 163 975)
FIRST CROSS-RESPONDENT

AND BETWEEN:

LEASE AUTO PTY LTD (ACN 007 163 975)
SECOND CROSS-CLAIMANT

AND

TRANSPORT ACCIDENT COMMISSION
SECOND CROSS-RESPONDENT

FAI GENERAL INSURANCE COMPANY LIMITED
(ACN 000 327 855)
THIRD CROSS-RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

24 MAY 2002

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The judgment as between the applicant and the first respondent take effect as at 1 February 2002.

2.Interest on that judgment be payable from that date.

3.The suspension on the order that the first respondent pay to the applicant costs of the action is lifted.

4.The second cross-respondent pay to the second cross-claimant’s costs of defending the applicant’s claim and prosecuting its cross-claim against the second cross-respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.12 OF 1999

BETWEEN:

ROBERT LAVRICK
APPLICANT

BETWEEN:

ROBERT LAVRICK
APPLICANT

AND:

LEASE AUTO PTY LTD (ACN 007 163 975)
FIRST RESPONDENT

BUDGET RENTACAR AUSTRALIA PTY LTD
(ACN 007 348 021)
SECOND RESPONDENT

AND BETWEEN:

BUDGET RENTACAR AUSTRALIA PTY LTD
(ACN 007 348 021)
FIRST CROSS-CLAIMANT

AND

LEASE AUTO PTY LTD (ACN 007 163 975)
FIRST CROSS-RESPONDENT

AND BETWEEN:

LEASE AUTO PTY LTD (ACN 007 163 975)
SECOND CROSS-CLAIMANT

AND

TRANSPORT ACCIDENT COMMISSION
SECOND CROSS-RESPONDENT

FAI GENERAL INSURANCE COMPANY LIMITED
(ACN 000 327 855)
THIRD CROSS-RESPONDENT

AND

LEASE AUTO PTY LTD & ORS
RESPONDENTS

JUDGE:	MANSFIELD J
DATE:	24 MAY 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. I delivered judgment in this matter on 10 May 2002.  In the course of the hearing I was informed that as between the applicant and the first respondent, agreement had been reached that the quantum of the applicant's claim - if he was successful - was to be $370,000 including interest. 

2. I am informed that that agreement was struck on 6 December 2001, shortly before the trial commenced.  In the course of submissions at the completion of the hearing, counsel for the first respondent indicated in the events which had happened that on one basis at least the first respondent did not then resist the applicant's claim.  Liability between the applicant and the first respondent did not need to be determined by the Court.  The issue remaining for determination, in substance, was the issue between the first respondent as second cross-claimant, and the second cross-respondent, its insurer.  I did not formally enter judgment in favour of the applicant against the first respondent at the completion of submissions, although there was in a technical sense no reason why I should not have done so, nor any remaining issue between the applicant and the first respondent. 

3. Following the formal entry of judgment on 10 May 2002, to reflect the admitted liability of the first respondent to the applicant, and the agreed quantum of that claim (as well as the decision on the cross-claim), counsel for the first respondent sought an order under O 35 r 3 of the Federal Court Rules that the judgment in favour of the applicant should take effect on 1 February 2002.  Counsel for the first respondent and for the second cross-respondent, which ultimately in the light of my findings will be the entity responsible for payment of that sum, opposed that application. 

4. It is opposed not on the basis that it would be unfair to make such an order, or that there are general reasons why such an order should not be made in this matter, but because of the terms of the agreement between the applicant and the first respondent as recorded in a letter of 6 December 2001.  If that letter did record an agreement in terms which mean that the agreed quantum of $370,000 including interest should relate to whenever the judgment was formally entered, to the intent that it should await the judgment between the first respondent, as second cross-claimant, and the second cross-respondent, there would be considerable force in the submission.  The Court would not, except in special circumstances, go behind any such agreement.

5. I do not, however, consider that the agreement as to quantum between the parties on 6 December 2001 carried with it an agreement that the $370,000 to include interest, was to include interest to whatever date the Court might resolve issues between the first respondent as second cross-claimant, and the second cross-respondent.  In a practical sense, judgment might have been entered on the applicant’s claim, as I have said, on 14 December 2001 or at any time thereafter. 

6. In the light of my decision, the first respondent in a notional sense, and the second cross-respondent in a real sense, has had the use of the agreed quantum of the claim notwithstanding the agreement as to quantum and the first respondent’s admitted liability to the applicant from the time of that admission to the present time.  In my view, the agreement as to quantum which was entered on 6 December 2001 did not mean to cover interest until judgment on the cross-claim between the second cross-claimant and the second cross-respondent.  It must have meant interest to the date upon which liability as between the first respondent and the applicant was resolved either by agreement (as occurred) or by judgment. 

7. The date suggested by counsel for the applicant reflects the fact, and sensibly so in my view, that the applicant, rather than press for judgment at the time liability was admitted, was prepared to wait a little time to see if all issues in the proceedings would be dealt with by about the end of January 2002.

8. As the agreement itself, as I construe it, does not amount to an agreement between the applicant and the first respondent that interest on the judgment should not run from any date after the date of an admission of liability or the time when liability between the applicant and the first respondent was resolved, I do not think by acceding to the application I am going behind the agreement entered into between the parties.  It was an agreement only as to quantum.  At that point liability had not been resolved between the applicant and the first respondent.

9. As I have said, putting aside that agreement, nothing was put to suggest the order sought is not appropriate.  I therefore order pursuant to O 35 r 3 that the judgment as between the applicant and the first respondent take effect as at 1 February 2002.  I have previously formally entered judgment in the sum of $370,000 including interest.  That interest will therefore be interest up to 31 January 2002.  Interest on that judgment will be payable from that date.

10. I have ordered that the first respondent pay to the applicant costs of the action.  I have ordered that the second cross-claimant is entitled to indemnity from the second cross-respondent in respect of its liability to the applicant.  I previously suspended the operation of that order until today.  I now lift that suspension. 

11. Having heard counsel, I also see no reason why the normal rule as to costs should not apply as between the second cross-claimant and the second cross-respondent.  I order that the second cross-respondent, pay to the second cross-claimant, Lease Auto Pty Ltd, the second cross-claimant's costs of defending the applicant's claim and prosecuting its cross-claim against the second cross-respondent.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             3 June 2002

Counsel for the Applicant:	Mr PA Heywood Smith
Solicitor for the Applicant:	Johnson Withers
Counsel for the First Respondent & First Cross-Respondent & Second Cross-claimant:	Mr ST Lane
Solicitor for the First Respondent & First Cross-Respondent & Second Cross-claimant:	O’Loughlins
Counsel for the Second Respondent	No appearance
Solicitor for the Second Respondent	No appearance
Counsel for the Second Cross-Respondent:	Mr P Jones
Solicitor for the Second Cross-Respondent	Ward & Partners
No appearance for Third Cross-respondent
Dates of Hearing:	10, 13 & 14 December 2001
Date of Judgment:	31 May 2002