Maund v Crown in right of the State of New South Wales (No 2)

[2013] NSWCA 248

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Maund v Crown in right of the State of New South Wales (No 2) [2013] NSWCA 248

Hearing dates:

On papers

Decision date:

05 August 2013

Before:

Meagher JA at [1];
Barrett JA at [1];
Leeming JA at [1]

Decision:

1. The appeal is allowed in part.

2. Order 1 made by Lindsay J on 21 March 2013 is set aside.

3. In lieu thereof, the Court (a) enters judgment in favour of the plaintiff (being the respondent to the appeal) in the amount of $499,424.63 inclusive of interest, and (b) Orders that Ms Maund pay to the State the whole of the amount refunded to her by the ATO (including interest).

4. The Court notes that the orders in 3(a) and 3(b) above are separate, such that satisfaction of one does not discharge any part of the obligation in the other.

5. The Court further notes that Ms Maund has now satisfied her obligations in order 3 above to repay principal and interest to the State.

6. The appeal is otherwise dismissed.

7. The appellant is to pay the respondent's costs of the appeal, save for the costs of the hearing on 17 June 2013, as agreed or assessed.

[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:

PROCEDURE - formulating orders in accordance with reasons determining appeal

Cases Cited:

House v R (1936) 55 CLR 499

Category:

Consequential orders

Parties:

Deborah Maund (Appellant - in person)
The Crown in the right of New South Wales (Respondent)

Representation:

Counsel:
J Hyde (Respondent)
Solicitors:
De Mestre and Company (Respondent)

File Number(s):

2013/187023

 Decision under appeal 

Citation:

Crown in right of the State of New South Wales v Maund [2013] NSWSC 183

Date of Decision:

2013-03-21 00:00:00

Before:

Lindsay J

File Number(s):

2012/126353

Judgment

1. THE COURT: This Court's judgment of 18 July 2013 ([2013] NSWCA 226) determined that the whole of Ms Maund's claims would be dismissed, except insofar as interest at ordinary rates had been calculated on the amount of $55,260 which had been withheld by her employer and remitted to the Australian Taxation Office. That amount was eventually refunded, with interest, to Ms Maund, and the Court was told informally that she had paid the whole of that refund (including interest allowed at a rate which was significantly lower than the ordinary rate) to the State. The Court regarded that amount as being different in character from the balance of $412,236.60 which Ms Maund had wrongfully retained, such as to warrant review of the award of prejudgment interest within the principles in House v R (1936) 55 CLR 499 at 505. It was said at [61] that:

"[T]he appropriate re-exercise of discretion is clear. The State should obtain pre-judgment interest on the $412,596 at ordinary rates, but should be confined to the interest actually paid by the ATO in relation to the $55,260."

1. Because the precise orders turned upon what the Court had been told after judgment had been reserved, and involved the calculation of interest, it was appropriate to give the parties a further opportunity to be heard. Accordingly, the only order made on 18 July 2013 was a direction for the parties to file agreed short minutes if that were possible, failing which they were to file the orders for which they contended and submissions not exceeding three pages. The latter has now occurred.

1. Ms Maund has not provided any proposed orders. She has instead indicated that she disagrees with the entire judgment delivered on 18 July 2013. She reminds the Court that "I have already paid the respondent $571,749.90 to satisfy a debt of $467,856.60 inclusive of the taxation withheld." She says that on 29 May 2013 the amount stayed by Barrett JA was paid to the respondent. She objects to the respondent's solicitor's assessment of costs, and opposes interest being charged on costs while the costs assessment process is being carried out. She submits that "the Court should not order costs at this time", and asks for an "opportunity to see a breakdown of all costs including costs for the appeal prior to any orders being made regarding this issue." She says she should not be responsible for the costs of the pre-appeal Court appearances before Barrett JA. She concludes that she has nothing further to tell the Court that has not already been said.

1. However, the purpose of the Court's order was not to grant an opportunity to reiterate what had already been decided. Nor was it to expand the scope of the appeal to something which is not before this Court, namely the assessment of the costs orders which have been made in favour of the respondent. The purpose was merely to permit the formulation of precise orders in accordance with the Court's reasons.

1. The respondent proposes the following orders:

(1)   The appeal is allowed in part.

(2)   Order 1 made by Lindsay J on 21 March 2013 is set aside.

(3)   In lieu thereof, the Court orders judgment in favour of the respondent to the appeal in the amount of $559,986.27 inclusive of interest.

(4)   The appeal is otherwise dismissed.

(5)   The stay ordered by Barrett JA on 22 April 2013 is dissolved.

(6)   The appellant is to pay the respondent's costs of the appeal, save for the costs of the hearing on 17 June 2013, as agreed or assessed.

1. In our opinion, proposed orders (1), (2), (4) and (6) are appropriate (the terms of order (6) reflect [73] of the reasons). The interlocutory stay ordered by Barrett JA was expressed only to be in force until the determination of the appeal; hence, order (5) is not needed. It is necessary to say something more of order (3) in two respects: as to quantum, and as to its substance.

1. As to quantum, the respondent says that the amount is comprised of two components: $499,424.63 (being an amount of $412,236.60 plus interest of $87,188.03), and $60,561.64 (being $55,260 plus interest paid to Ms Maund of $5,301.64).

1. The first component reflects the calculations in the reasons at [62], which the parties were invited to check. It is now clear that there is no disagreement as to those calculations.

1. The second component reflects an acceptance from the respondent that Ms Maund received interest from the ATO of $5,301.64 and paid that interest to it, which is what Ms Maund had informally communicated to the Court.

1. However, the order as framed by the respondent is not quite right. As framed by the respondent, it is a single judgment debt entered in lieu of that ordered by Lindsay J on 21 March 2013 by reference to interest calculated as at that date. But as at 21 March 2013, the interest which the ATO would have accrued on the $55,260 was (slightly) less than the $5,301.64 which the ATO in fact paid to Ms Maund when it issued her refund some four months later. One approach would be to calculate what the interest on that component would then have been. However, the more straightforward approach is that indicated in [63] of the Court's reasons, which were in these terms:

"It seems that Ms Maund has now repaid the $55,260 plus all interest received from the ATO, as well as $511,188.26 in partial discharge of the original judgment debt. If that is common ground, then the appropriate orders would be to set aside the judgment of $566,808.26 and in lieu thereof (1) enter judgment for the plaintiff in the sum of $499,424.63 including interest, (2) order that Ms Maund pay to the State the whole of the amount refunded to her by the ATO (including interest) within 14 days of the refund being made, (3) note that orders (1) and (2) are separate, such that satisfaction of order (2) does not discharge any part of the judgment in (1). It should be noted in the orders made in this appeal that Ms Maund has now satisfied her obligations to repay both components of the first payment to the State."

1. Because it is common ground that Ms Maund has now in fact repaid all of the principal and interest which she is obliged to pay, there is no practical difference between a judgment debt and an order in the nature of a personal obligation to repay such amount as she has received from the ATO, and it is simpler to follow the approach indicated in the reasons.

1. Further, orders should be clear on their face. It is desirable at the same time as the respondent obtains the benefit of the large judgment against Ms Maund to which it is entitled for it to be made clear on the face of the orders that the obligation to pay those amounts has already been satisfied.

1. Accordingly, the Court's orders will be as follows:

1. The appeal is allowed in part.

2. Order 1 made by Lindsay J on 21 March 2013 is set aside.

3. In lieu thereof, the Court (a) enters judgment in favour of the plaintiff (being the respondent to the appeal) in the amount of $499,424.63 inclusive of interest, and (b) orders that Ms Maund pay to the State the whole of the amount refunded to her by the ATO (including interest).

4. The Court notes that the orders in 3(a) and 3(b) above are separate, such that satisfaction of one does not discharge any part of the obligation in the other.

5. The Court further notes that Ms Maund has now satisfied her obligations in order 3 above to repay principal and interest to the State.

6. The appeal is otherwise dismissed.

7. The appellant is to pay the respondent's costs of the appeal, save for the costs of the hearing on 17 June 2013, as agreed or assessed.

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Amendments

04 September 2013 - Wrongly cited as [2013] NSWSC 226; should be NSWCA 226.

Amended paragraphs: Paragraph 1

Decision last updated: 04 September 2013