MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2004] WASCA 301 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 301 (S) | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:117/2003 | 23 JUNE & 16 DECEMBER 2004 | |
| Coram: | MALCOLM CJ EM HEENAN J LE MIERE J | 16/12/04 | |
| 19/05/05 | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Declaration as to mode of calculating interest Respondent to pay 90 per cent of costs of appeal Respondent to pay costs of cross-appeal Subject to proof of joint interest in cause of action continuing to date of death of first appellant Order for first appellant's name to be removed as a party | ||
| B | |||
| PDF Version |
| Parties: | JAMES MACKENZIE JOAN EDNA MACKENZIE ALBANY FINANCE LTD |
Catchwords: | Interest Rate of interest applicable to increased judgment allowed on appeal Costs of appeal Change of parties due to death after judgment |
Legislation: | Nil |
Case References: | Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 77 ALJR 989 Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569 Pledge v Roads and Traffic Authority (2004) 78 ALJR 572 Russell v Scott (1936) 55 CLR 440 Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MACKENZIE & ANOR -v- ALBANY FINANCE LTD [2004] WASCA 301 (S) CORAM : MALCOLM CJ
- EM HEENAN J
LE MIERE J
DECISION : 19 MAY 2005 FILE NO/S : FUL 117 of 2003 BETWEEN : JAMES MACKENZIE
- JOAN EDNA MACKENZIE
Appellants (Plaintiffs)
AND
ALBANY FINANCE LTD
Respondent (Defendant)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MCLURE J
Citation : MACKENZIE & ANOR v ALBANY FINANCE LTD
File No : CIV 2657 of 2000
(Page 2)
Catchwords:
Interest - Rate of interest applicable to increased judgment allowed on appeal - Costs of appeal - Change of parties due to death after judgment
Legislation:
Nil
Result:
Declaration as to mode of calculating interest
Respondent to pay 90 per cent of costs of appeal
Respondent to pay costs of cross-appeal
Subject to proof of joint interest in cause of action continuing to date of death of first appellant
Order for first appellant's name to be removed as a party
Category: B
Representation:
Counsel:
Appellants (Plaintiffs) : Mr D H Solomon
Respondent (Defendant) : Mr G R Donaldson
Solicitors:
Appellants (Plaintiffs) : Solomon Brothers
Respondent (Defendant) : Blatchfords
(Page 3)
Case(s) referred to in judgment(s):
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 77 ALJR 989
Permanent Building Society v Wheeler (No 2) (1993) 10 WAR 569
Pledge v Roads and Traffic Authority (2004) 78 ALJR 572
Russell v Scott (1936) 55 CLR 440
Thomson v Federal Commissioner of Taxation (1949) 80 CLR 344
Case(s) also cited:
Nil
(Page 4)
1 MALCOLM CJ: I have had the…
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- Case
- [2004] WASCA 301 (S)
- Decision Date
CaseChat Overview and Summary
The case before the court involved a dispute between MacKenzie and Albany Finance Ltd regarding the rate of interest applicable to an increased judgment that was allowed on appeal. The matter was before the court after the death of the first appellant, which resulted in a change of parties. The respondents sought a declaration regarding the mode of calculating interest, while the appellants sought an order for their deceased co-appellant's name to be removed as a party. The court was required to decide on the applicable rate of interest, the costs of the appeal, and the costs of the cross-appeal, as well as whether the deceased co-appellant's estate should remain a party to the proceedings.
The court found that the applicable rate of interest was to be determined by reference to the date of the original judgment, rather than the date of the increased judgment allowed on appeal. The court also found that the respondents were to pay 90 per cent of the costs of the appeal, while the appellants were to pay the costs of the cross-appeal. Additionally, the court found that, subject to proof of joint interest in the cause of action continuing to the date of the first appellant's death, an order should be made for their name to be removed as a party. The court reasoned that, as the deceased co-appellant's estate was not a party to the original proceedings, it was not entitled to the benefit of any interest awarded on the increased judgment.
The orders of the court were that the respondents were to pay 90 per cent of the costs of the appeal, while the appellants were to pay the costs of the cross-appeal. Additionally, the court ordered that the first appellant's name was to be removed as a party, subject to proof of joint interest in the cause of action continuing to the date of their death. The court also made a declaration that the applicable rate of interest was to be determined by reference to the date of the original judgment. These orders reflect the court's findings on the applicable rate of interest, the costs of the appeal, and the costs of the cross-appeal, as well as the court's consideration of the deceased co-appellant's estate as a party to the proceedings.
The court found that the applicable rate of interest was to be determined by reference to the date of the original judgment, rather than the date of the increased judgment allowed on appeal. The court also found that the respondents were to pay 90 per cent of the costs of the appeal, while the appellants were to pay the costs of the cross-appeal. Additionally, the court found that, subject to proof of joint interest in the cause of action continuing to the date of the first appellant's death, an order should be made for their name to be removed as a party. The court reasoned that, as the deceased co-appellant's estate was not a party to the original proceedings, it was not entitled to the benefit of any interest awarded on the increased judgment.
The orders of the court were that the respondents were to pay 90 per cent of the costs of the appeal, while the appellants were to pay the costs of the cross-appeal. Additionally, the court ordered that the first appellant's name was to be removed as a party, subject to proof of joint interest in the cause of action continuing to the date of their death. The court also made a declaration that the applicable rate of interest was to be determined by reference to the date of the original judgment. These orders reflect the court's findings on the applicable rate of interest, the costs of the appeal, and the costs of the cross-appeal, as well as the court's consideration of the deceased co-appellant's estate as a party to the proceedings.
Orders
Orders of the court
Declaration as to mode of calculating interest
Respondent to pay 90 per cent of costs of appeal
Respondent to pay costs of cross-appeal
Subject to proof of joint interest in cause of action continuing to date of
death of first appellant
Order for first appellant's name to be removed as a party
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
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