Milevski v Paltos (No 2) - [2022] NSWSC 437

Supreme Court

New South Wales

Medium Neutral Citation: Milevski v Paltos (No 2) [2022] NSWSC 437
Hearing dates: 8 April 2022
Date of orders: 8 April 2022
Decision date: 08 April 2022
Jurisdiction: Equity
Before: Parker J
Decision:
See [30]-[31]

Catchwords:
INTEREST – statutory interest – partnership account – whether “proceedings for the recovery of money” – purpose of award of statutory interest – Civil Procedure Act 2005 (NSW), s 100 – interest awarded on judgment for balance due on account
COSTS – costs following judgment – partnership account – where plaintiff succeeded on valuation of goodwill issue and in obtaining judgment for balance due on account – where plaintiff succeeded on claim for indemnity against partnership liability to bank – order for costs in favour of plaintiff with no order as to costs solely referable to other accounting and receivership issues

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Ausintel Investments Pty Ltd v Lam (1990) 19 NSWLR 637
Bennett v Jones [1977] 2 NSWLR 355
Milevski v Paltos [2022] NSWSC 261
Newton v Grand Junction Railway Co (1846) 16 M & W 139; 153 ER 1133

Category: Procedural rulings
Parties: Main proceedings
Peter Milevski (Plaintiff)
Dennis Paltos (Defendant)
Motion filed 9 August 2019 (as amended 1 February 2022)
John Maxwell Morgan and Geoffrey Robert Davis (Applicants)
Peter Milevski (First Respondent)
Dennis Paltos (Second Respondent)
Representation:
Counsel:
Main proceedings
CD Wood SC (Plaintiff)
E Holmes (Defendant)

Motion filed 9 August 2019 (as amended 1 February 2022)
J Shepard (Applicants)
CD Wood SC (First Respondent)
E Holmes (Second Respondent)

Solicitors:
Main proceedings
Harris Freidman (Plaintiff)
Polczynski Robinson (Defendant)
Motion filed 9 August 2019 (as amended 1 February 2022)
Harpur Phillips (Applicants)
Harris Freidman (First Respondent)
Polczynski Robinson (Second Respondent)

File Number(s): 2016/118930
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript and annotated; issued 12 April 2022

The proceedings before the Court are for the purpose of making orders to give effect to the judgment which I delivered on 14 March 2022: Milevski v Paltos [2022] NSWSC 261. For the purpose of this judgment, I shall refer to that judgement as “J1”.
In my March decision, I concluded that Mr Milevski was entitled to judgment against Mr Paltos in the principal sum of $339,184. This sum was the amount due, on my findings, on account of the partners’ capital account balances as at the date of dissolution of the partnership, together with the value of partnership assets transferred to, and partnership liabilities discharged by, the partners following the dissolution.
Mr Milevski seeks interest at the rates prescribed in s 100 of the Civil Procedure Act 2005 (NSW). He claims interest not on the full amount of the judgment to which I have found he is entitled, but on that part of the judgment, being $266,847, which represents the amount due to him on capital account.
The interest on this figure has been calculated as $79,647. There is…

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 Milevski v Paltos (No 2)

Details

AGLC: Milevski v Paltos (No 2) [2022] NSWSC 437
Case: [2022] NSWSC 437
Decision Date: 08 April 2022

CaseChat Overview and Summary

The appeal before the court involved Milevski and Paltos in relation to a partnership account. The primary dispute centred on whether statutory interest should be awarded on a judgment for the balance due on a partnership account and the allocation of costs following the judgment. The case was heard in the Supreme Court of New South Wales.

The legal issues addressed by the court included the interpretation of statutory interest provisions within the context of a partnership account and the determination of costs following a judgment where the plaintiff had succeeded on several claims. Specifically, the court had to decide whether the statutory interest applied to "proceedings for the recovery of money" under the Civil Procedure Act 2005 (NSW), s 100, and the appropriate allocation of costs where the plaintiff had successfully argued for the valuation of goodwill and obtained a judgment for the balance due on the account, alongside a claim for indemnity against partnership liability to a bank.

The court found that the statutory interest applied to the judgment for the balance due on the partnership account, as it fell within the scope of "proceedings for the recovery of money." The purpose of the statutory interest was to provide a remedy for the delay in payment of the debt, aligning with the objectives of the Civil Procedure Act. Furthermore, the court ordered that costs be awarded to the plaintiff, acknowledging the plaintiff's success on the valuation of goodwill issue and the claim for indemnity against partnership liability to the bank. The court did not make any order as to costs solely referable to other accounting and receivership issues.

The final orders included an award of statutory interest on the judgment for the balance due on the partnership account and an order for costs in favour of the plaintiff, with no order as to costs solely referable to other accounting and receivership issues.

Orders