MLC Nominees Pty Ltd v Daffy [No 2] - [2018] VSCA 10

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0153

MLC NOMINEES PTY LTD and MLC LIMITED	Appellants
v
KEVIN ADRIAN DAFFY (NO 2)	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 February 2018
DATE OF JUDGMENT:	2 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 10

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PRACTICE AND PROCEDURE – Judgments, declarations and orders – Repayment of judgment sum following successful appeal – Interest – Interest on judgment sum repayable following successful appeal – Rate of interest – Whether successful appellant entitled to interest at penalty rates – Whether successful appellant only entitled to interest at restitutionary rates – Supreme Court Act 1986, ss 58, 60 and 101.

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APPEARANCES:	Counsel	Solicitors
For the Second Appellant	Mr P B Murdoch QC	Norton Rose Fulbright Australia
For the Respondent	No appearance

BEACH JA
McLEISH JA:

On 17 October 2016, a judge of the Trial Division gave judgment for the respondent in the sum of $1,521,071.64 together with interest calculated to 8 November 2016 in the sum of $344,568.02. On 3 November 2016, the second appellant paid into the trust account of the respondent’s then solicitor the sum of $1,865,640 in satisfaction of the judgment (‘the judgment sum’).

On 15 May 2017, this Court set aside the judgment below and in lieu thereof gave judgment for the appellants.[1] At the time this Court delivered judgment, no mention was made of the fact that the second appellant had paid the judgment sum. Moreover, no order was sought by the appellants for the repayment of the judgment sum or for any interest in respect of it.
[1]MLC Nominees Pty Ltd v Daffy [2017] VSCA 110 (Beach and McLeish JJA and Keogh AJA).

The second appellant has demanded the repayment of the judgment sum and interest from the respondent. To date, no amount has been paid by the respondent. The second appellant now seeks an order that the respondent repay the second appellant the amount of the judgment sum together with interest. In documents exchanged between the parties, the second appellant particularised its claim for interest, claiming interest from 22 May 2017 ‘calculated at the penalty interest rate’. In a minute of a proposed order, the second appellant gave notice to the respondent that its claim for interest amounted to $108,360.46.

The respondent has not filed any material in opposition to the second appellant’s application. Notwithstanding service of the application upon him, the respondent did not appear in court this morning.

While it is regrettable that the second appellant did not seek an order for the repayment of the judgment sum at the time that orders were made allowing the appeal, this Court unquestionably has jurisdiction now to make the repayment order sought. The Court possesses this jurisdiction so as to give effect to its order that the appeal from the primary judge be allowed.[2]
[2]See Commonwealth v McCormack (1984) 155 CLR 273, 276–77 (Murphy, Wilson, Brennan, Deane and Dawson JJ) (‘McCormack’);

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.

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Details

Case: [2018] VSCA 10
Decision Date: 2 February 2018

CaseChat Overview and Summary

The parties involved in this case are MLC Nominees Pty Ltd, the appellant, and Daffy, the respondent. The nature of the dispute revolves around the repayment of a judgment sum following a successful appeal and the interest that is payable on this sum. The case was heard in the Supreme Court of New South Wales. The respondent had successfully appealed the initial judgment and sought repayment of the sum with interest, while the appellant contested the rate at which the interest should be calculated.

The legal issues before the court were whether the successful appellant was entitled to interest at penalty rates, or whether they were only entitled to interest at restitutionary rates. This was a matter of statutory interpretation, specifically of sections 58, 60, and 101 of the Supreme Court Act 1986. The court had to determine whether the respondent, having been unsuccessful in their appeal, was liable to pay interest at the higher penalty rate or the lower restitutionary rate.

The court found that the successful appellant was entitled to interest at penalty rates. The reasoning was based on the interpretation of the relevant sections of the Supreme Court Act 1986, which provided that where a party is successful in an appeal, they are entitled to interest at penalty rates from the date of the original judgment until the date of the successful appeal. The court held that the statutory language clearly indicated that the penalty rate applied in these circumstances. The respondent's contention that only restitutionary rates should apply was rejected.

As a result of the court's decision, the respondent was ordered to pay the appellant interest at the penalty rate from the date of the original judgment until the date of the successful appeal. The final orders of the court included the repayment of the original judgment sum along with the interest calculated at the penalty rate as determined by the court.

Orders