Maestrale v Aspite (No 2)

[2014] NSWCA 302

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Maestrale v Aspite (No 2) [2014] NSWCA 302

Hearing dates:

On the papers

Decision date:

03 September 2014

Before:

Beazley P;
Macfarlan JA;
Barrett JA

Decision:

1. Vary order (2) made on 6 June 2014, with effect from that date, to read:

Set aside the award of damages made by her Honour and in lieu thereof order that the respondents pay to the appellant damages in the sum of $273,298.00 together with pre-judgment interest in the sum of $120,631.12, so that the judgment sum payable to the appellant is $393,929.12.

2. The respondents to pay to the appellant:

(a) If all monies owing by the respondents are paid to the appellant pursuant to these orders within 28 days, post-judgment interest in the sum of $15,358.26; or

(b) Otherwise, post-judgment interest on the amount of the judgment sum as is from time to time unpaid, calculated in accordance with the Civil Procedure Act 2005, s 101.

3. The appellant to pay the respondents' costs of the parties' further submissions on the calculation of interest.

[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 interest - Civil Procedure Act 2005, s 100(1) - calculation of interest - date from which pre-judgment interest should run

INTEREST - post-judgment interest - Civil Procedure Act 2005, s 101 - calculation of interest - date to which post-judgment interest should run

Legislation Cited:

Civil Procedure Act 2005
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Cases Cited:

Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Nu Line Construction Group Pty Ltd v Fowler (No 3) [2014] NSWCA 229

Texts Cited:

Supreme Court Practice Note 16 (16 June 2010)

Category:

Consequential orders

Parties:

Aldo Maestrale (Appellant)
Dante Aspite (First Respondent)
Bartholomew Rando (Second Respondent)

Representation:

Counsel:
C T Barry QC; J Rowe (Appellant)
G A Sirtes; J Downing (Respondents)
Solicitors:
MMD Law (Appellant)
HWL Ebsworth Lawyers (Respondents)

File Number(s):

CA 2013/31938

 Decision under appeal 

Jurisdiction:

9111

Citation:

Maestrale v Aspite [2012] NSWSC 1420; Maestrale v Aspite (No 2) [2012] NSWSC 1421

Before:

Fullerton J

File Number(s):

2008/289388

Judgment

1. THE COURT: On 6 June 2014, the principal judgment in this matter was delivered by the Court: Maestrale v Aspite [2014] NSWCA 182. The Court ordered that the award of damages made by the primary judge be set aside and that the respondents pay the appellant damages in the sum of $273,298 together with interest calculated in accordance with Supreme Court Practice Note 16 (16 June 2010). The Court directed the parties to file short minutes of order to…