Lymlind Pty Ltd v Parianos, G.

[1995] FCA 552

CATCHWORDS

JUDGMENTS AND ORDERS - Date from which interest is to be

calculated on the amount ordered to be paid - s51A of the

Federal Court of Australia Act 1976 - a cause of action in

restitution or contract - whether material difference.

Federal Court of Australia Act 1976 - s51A

LYMLIND PTY. LIMITED & ORS v GEORGE PARIANOS & ORS

No. 336 of 1994

BEAUMONT J.

SYDNEY

12 JULY 1995

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        NO. G336 OF 1994
  )
GENERAL DIVISION                 )

BETWEEN:     LYMLIND PTY LIMITED
  First applicant

ANAGYROS PARIANOS
  Second applicant

MARGUERITA PARIANOS
  Third applicant

AND:     GEORGE PARIANOS
  First respondent

SANTANA COFFEE & TEA   PTY LIMITED
  Second respondent

AND BETWEEN:     GEORGE PARIANOS

Cross-claimant

AND:ANAGYROS PARIANOS AND MARGUERITA PARIANOS

Cross-respondents

CORAM:    BEAUMONT J

DATE:     12 JULY 1995

PLACE:    SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

Pre-judgment interest is to be calculated from

20 May 1989.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        NO. G336 OF 1994
  )
GENERAL DIVISION                 )

BETWEEN:     LYMLIND PTY LIMITED
  First applicant

ANAGYROS PARIANOS
  Second applicant

MARGUERITA PARIANOS
  Third applicant

AND:     GEORGE PARIANOS
  First respondent

SANTANA COFFEE & TEA   PTY LIMITED
  Second respondent

AND BETWEEN:     GEORGE PARIANOS

Cross-claimant

AND:ANAGYROS PARIANOS AND MARGUERITA PARIANOS

Cross-respondents

CORAM:    BEAUMONT J

DATE:     12 JULY 1995

REASONS FOR JUDGMENT (No. 2)
         (On the date from which interest payable)

In this matter, I published reasons for judgment on 10 February 1995 and then indicated that I would hear the parties on the form of the orders to be made, including costs, and on any matters outstanding from the accounts taken by Registrar Howard.  I have heard argument on one such matter, and I now give my reasons for that conclusion. 

At p.67 of my earlier reasons for judgment, I indicated that it should be ordered that the first respondent pay the second and third applicants the sum of 1,300,000 Swiss Francs ("CHF") together with interest at the rate provided for in the deed there mentioned but subject to the right of the first respondent to set-off certain amounts there specified.

Debated before me to-day was the question of the date from which any such interest should be calculated.  Two competing approaches were advanced.  On behalf of the applicants, it was submitted that the date from which interest should be calculated was 20 May 1989, being the date upon which the funds were, they contend, borrowed from a Swiss bank.  On the other hand, it is submitted, on behalf of the respondents, that the date should be 25 May 1989, being the date upon which the funds were received by the respondents in Australia.

At pp.38 and 39 of my earlier reasons for judgment, I have set out the relevant terms of the two deeds dated 22 May 1991.  In the first deed, it is stated that the first respondent acknowledged receipt on 20 May 1989 of the total sum of CHF 2,300,000.  In the second deed, as appears at p.39 of the reasons, it is stated that the parties agreed that on 20 May 1989 the loan there mentioned was made.  In cl.3(b) of the second deed (see p.39 of the reasons) it was provided that
the borrower would pay interest on the principal sum or so much thereof as shall from time to time remain unpaid, calculated at the rate charged by the lenders' bank on loans of the amount there specified, "as from the date of the loan".

In my opinion, if the matter rested only in contract, it would have been clear that the date from which interest was agreed to be calculated was 20 May 1989.  However, in my reasons for judgment, at p.63 and following, I address the contention advanced on behalf of the respondents that there had been an election on the part of the applicants to abandon the Bali deed, and that the deed was, in any event, discharged at common law.

As appears from my earlier reasons for judgment, especially at p.66, I have left open the possibility that a claim in contract may no longer be available to the applicants by reason of these contentions put on behalf of the respondents.  However, it was not necessary for me to form a concluded view on these matters because I indicated that, so far as the principal sum was concerned, even if there were to be at common law no existing claim available in contract, I would, nonetheless, have found that the applicants had a cause of action in restitution, or under the doctrine of unjust enrichment, to recover the principal sum in any event.

If I had been confined in my consideration to the recovery of the principal sum under the cause of action in restitution, I would not have then entertained a claim in contract in respect of the interest. However, by virtue of the provisions of s.51A of the Federal Court of Australia Act the Court is given a power, unless good cause is shown to the contrary, to order that interest be paid either under the provisions of sub-para.(a) or, in the alternative, by a lump sum in lieu of any such interest pursuant to sub-para.(b). 
Clearly, this power is available in a claim for restitution, as well as for breach of contract.

It is true, as was submitted on behalf of the respondents, that the power to order interest under section 51A(1)(a) is confined to the period:

"[B]etween the date when the cause of action arose and the date as of which judgment is entered."  (My emphasis)

I accept that limitation, but it does not follow that the relevant commencing date in the present case should be 25 May rather than 20 May.  Even if I were to look at the matter under the law of restitution, and not under the law of contract, it appears that the relevant cause of action accrued as at 20 May 1989, being the date upon which, on the best evidence that I have before me, the parties treated the advance of the funds to have been made.

In that sense, I would have held, if necessary, that the cause of action in restitution arose as at 20 May 1989.  For those reasons, I propose to declare, in addition to the order foreshadowed in p.67 of my reasons, that interest should be calculated as from 20 May 1989.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Associate

Dated:     12 July 1995