Maher v Millennium Markets - [2004] VSC 195

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8883 of 2001

PATRICIA MAHER AND OTHERS	Plaintiffs
v
MILLENNIUM MARKETS AND OTHERS	Defendants

---

JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 MAY 2004
DATE OF JUDGMENT:	1 JUNE 2004
CASE MAY BE CITED AS:	MAHER & ORS v MILLENNIUM MARKETS & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 195

---

Costs – Calderbank letter - Damages – Interest – s58 Supreme Court Act 1986.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P Riordan SC with Mr A Strahan	Riordan & Partners
For the First to Third Defendants	Mr J Styring	Efron & Associates
For the Fourth Defendant	Mr P O’Callaghan QC with Mr I R Jones	Minter Ellison

HIS HONOUR:

Following my judgment with respect to the merits in this matter:

(a)the plaintiffs have sought orders for damages, interest and costs against the fourth defendant;
(b)the first, second and third defendants ("the purchaser defendants") have sought an order for costs against the plaintiffs and the first defendant has sought orders on the counterclaim for damages, removal of caveat, possession of the Bourke Street apartment and costs;
(c)the fourth defendant has sought an order for costs of a particular issue which was not pursued by the plaintiffs at trial;
(d)stays of execution have been sought by the fourth defendant and plaintiffs respectively.

Interest on the Claim

The plaintiffs seek firstly an order for interest upon the damages recovered by them by the fourth defendant. Such damages total $150,000 and comprise the disgorgement of a series of payments received by the fourth defendant from the second defendant ("the Herszberg fee").

The plaintiffs seek damages pursuant to s.58 of the Supreme Court Act 1986 which relevantly provides:

"58(1)If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

…
(3)A debt or sum payable or a date or time is to be taken to be certain if it has become certain."

It is accepted by the fourth defendant that the amounts in issue constitute "sums certain" but it is disputed that the plaintiffs fall within the description of "creditors".

In Farrow Finance Company Ltd (In Liq) v Farrow Properties Pty Ltd (In Liq) & Ors[1] Hansen J held that the decision of directors of the plaintiff to make a loan to the defendant was a breach of their fiduciary duty to…

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.

Continue reading Maher v Millennium Markets

Details

AGLC: Maher v Millennium Markets [2004] VSC 195
Case: [2004] VSC 195
Decision Date: 1 June 2004

CaseChat Overview and Summary

The case of Maher v Millennium Markets arose in the Supreme Court of Victoria and centred on a dispute between the plaintiff, Maher, and the defendant, Millennium Markets. Maher alleged that Millennium Markets breached the Australian Securities and Investments Commission Act by making misleading or deceptive representations in relation to the sale of financial products. The primary dispute involved the calculation of damages and interest awarded to Maher, as well as the costs associated with the proceedings.

The central legal issues before the court were the proper calculation of interest on the damages awarded to Maher and the assessment of costs in light of the parties' conduct, specifically the offer made by Millennium Markets via a Calderbank letter. The court had to determine whether the interest should be calculated from the date of the judgment or from an earlier date, and whether the Calderbank letter affected the costs order.

The court held that the interest on the damages should be calculated from the date the cause of action accrued, not from the date of judgment. The Calderbank letter, which was an offer to settle the case made after the commencement of the trial but before judgment, did not affect the usual rules for costs. The court ruled that the Calderbank letter was not an offer to settle on terms that were advantageous to the plaintiff and thus did not impact the costs order. The Supreme Court accordingly affirmed the original order for costs and interest.

Orders