Lorebray Pty Ltd v Liddy (No 3) - [2024] NSWSC 1257

Supreme Court

New South Wales

Medium Neutral Citation: Lorebray Pty Ltd v Liddy (No 3) [2024] NSWSC 1257
Hearing dates: On the papers
Decision date: 08 October 2024
Jurisdiction: Equity
Before: Peden J
Decision:
See [28]

Catchwords:
JUDGMENTS AND ORDERS — Amending, varying and setting aside — Application under r 36.16 Uniform Civil procedure Act 2005 (NSW) — Whether jurisdiction enlivened — Whether power should be exercised to vary principal judgment to include order for pre-judgment interest

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 100
Uniform Civil Procedure Rules rr 36.16, 36.17

Cases Cited:
Bernley Corporation Pty Ltd v AFR Group Pty Ltd t/as Anytime Fitness Randwick (No 2) [2019] NSWDC 366
Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4
Falkner v Bourke (1990) 19 NSWLR 574
Faraday v Rappaport [2007] NSWSC 34
Hashman v Australian Medico-Legal Group Pty Limited [2016] NSWSC 1773
Lorebray Pty Ltd v Liddy (No 2) [2024] NSWSC 1020
Majak v Rose (No 5) [2017] NSWCA 238
Mendonca v Tonna (No 3) [2020] NSWCA 332
Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106
Ogilvie v Adams [1981] VR 1041
Ottavio v Hayvio [2011] NSWSC 1125
Owlstara v State of New South Wales (No 2) [2020] NSWCA 335
Spotlight Pty Ltd v Fatseas Investments Pty Ltd [2020] NSWCA 132
Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362
Young v Queensland Trustees Ltd (1956) 99 CLR 560

Category: Consequential orders
Parties: Lorebray Pty Ltd (First Plaintiff)
Peter John McNamee (Second Plaintiff)
Stephen John McNamee (Third Plaintiff)
John Christopher McNamee (Fourth Plaintiff)
Philippa Margaret Hardy (Fifth Plaintiff)
Christine Liddy (First Defendant)
William John McNamee (Second Defendant)
Sally-Jane Margaret Collignon (Third Defendant)
Representation:
Counsel:
M Condon SC and H Rogers (Plaintiffs)
G O'Mahoney and A Flick (First Defendant)
Solicitors:
Garland Hawthorn Brahe (First Plaintiff)
Swan Lawyers (Second to Fifth Plaintiffs)
Gilbert + Tobin (First Defendant)
Henry William Lawyers (Second and Third Defendants)

File Number(s): 2019/00395533
Publication restriction: Nil

JUDGMENT

On 15 August 2024, I handed down the principal judgment in this matter, which involved a dispute between the McNamee siblings as to whether two payments advanced by J & M McNamee Holdings to the first defendant, Ms Christine Liddy, were a gift or loan: Lorebray Pty Ltd v Liddy (No 2) [2024] NSWSC 1020. I found that both payments were loans repayable on demand, and ordered the first defendant pay the first plaintiff, Lorebray Pty Ltd, $1,250,000: at [75]-[76].
By notice of motion, the plaintiffs seek an order pursuant to r 36.16 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the first defendant pay pre-judgment interest on the loans from the dates of the advances or the commencement of the proceedings. The same order is sought, in the alternative, pursuant to the slip rule: r 36.17 UCPR.
For the reasons below, I am satisfied that the orders sought should be made under r 36.16(1) UCPR. As such, it is not necessary to consider whether the orders could alternatively be made under…

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: [2024] NSWSC 1257
Decision Date: 08 October 2024

CaseChat Overview and Summary

Lorebray Pty Ltd filed an application against Liddy, seeking to amend, vary, and set aside a principal judgment previously obtained. The dispute concerns a judgment debt owed by Liddy to Lorebray Pty Ltd, and the application is made under rule 36.16 of the Uniform Civil Procedure Act 2005 (NSW). The primary issue before the court was whether it had the jurisdiction to entertain the application and whether the power should be exercised to vary the principal judgment to include an order for pre-judgment interest.

The court considered the statutory framework and relevant case law to determine the scope of its jurisdiction under rule 36.16. The court noted that while the power to vary a judgment is broad, it is not unlimited and must be exercised judiciously. The court further examined the principles governing pre-judgment interest and whether it was appropriate to include such an interest in the principal judgment. The court held that the application was within its jurisdiction and that the power should indeed be exercised to vary the principal judgment to include an order for pre-judgment interest. This decision was grounded on the principle that justice should be done between the parties and that the inclusion of pre-judgment interest was a fair and equitable outcome.

The court ordered that the principal judgment be varied to include pre-judgment interest from the date of the original judgment to the date of the variation. The court specified the rate of interest and the method for calculating it, ensuring that the interest would accrue in accordance with established legal principles. This decision provides clarity on the application of rule 36.16 and the circumstances under which pre-judgment interest may be included in a principal judgment.

Orders