Monteleone v Thorn (No 10)

[2021] NSWSC 729

Supreme Court

New South Wales

Medium Neutral Citation:

Monteleone v Thorn (No 10) [2021] NSWSC 729

Date of orders:

21 June 2021

Decision date:

21 June 2021

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

Pursuant to rule 36.17 UCPR, the judgment will be amended to include the sum of $14,368.99 on account of interest on past economic loss. The judgment will now be for the sum of $1,435,339 (rounded down).

Catchwords:

CIVIL PROCEDURE – plaintiff applied for judgment to be amended pursuant to the slip rule – Rule 36.17 of the UCPR – inadvertence of counsel – interest sought on past economic loss

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118

Kelly v Thorn; Monteleone v Thorn (No 9) [2021] NSWSC 599

L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1981) 151 CLR 590

Category:

Consequential orders

Parties:

Ross Monteleone (formerly Poyser) (Plaintiff)
Andrew Thorn (First Defendant/First Cross-Claimant)
Thorn Transport Pty Limited (Second Defendant/Second Cross-Claimant)
William Andrew Kelly (First Cross-Defendant)
William Richard Kelly (Second Cross-Defendant)

Representation:

Counsel:
G Reynolds SC with A Renshaw (Plaintiff)
D P Kelly (Defendants/Cross-Claimants)
L D Robison (Cross-Defendants)

Solicitors:
AR Conolly & Company Lawyers (Plaintiff)
Gillis Delaney Lawyers (Defendants/Cross-Claimants)
Benson Law (Cross-Defendants)

File Number(s):

2016/74936

Publication restriction:

None

Judgment

1. On 19 February 2021, I entered judgment for the plaintiff in the amount of $1,420,971[1] .

   1. Kelly v Thorn; Monteleone v Thorn (No 8) [2021] NSWSC 118

2. On 21 May 2021, the matter and the related matter of Kelly v Thorn (2015/326714) came before me for further argument on several issues arising out of the judgment including applications for a stay of execution[2] .

   2. Kelly v Thorn; Monteleone v Thorn (No 9) [2021] NSWSC 599

3. On that day, the plaintiff sought an order amending the judgment on the basis that I had erred in not allowing a sum for interest on past economic loss. As I said in my judgment, I did not allow any amount for interest for past economic loss because no such amount was included in the plaintiff’s schedule of damages and no submissions were made about interest.

4. Despite that, the plaintiff maintains that the judgment should be amended to include an allowance on account of interest for past economic loss on a number of different grounds. The defendants oppose any such order. As the application was made without notice, I directed that the plaintiff provide the defendants with submissions as to why such an amount should be allowed and granted leave to the parties to have the matter relisted before me on 3 days’ notice for the purposes of further argument.

5. The parties have now provided me with written submissions and asked that I deal with the matter on the papers.

6. The plaintiff seeks the sum of $14,368.99 for interest on past economic loss. That sum is calculated on the amount of the loss set out in my original judgment up to the date of judgment of 21 May 2021. The plaintiff submits that I would amend the judgment to include an allowance for interest on past economic loss as at the time the application was made, judgment had not been entered.

7. Further, it is said that interest is claimed in the statement of claim as well as the statement of particulars. The absence of any reference to interest in the submissions and schedule is said to have been either an oversight or deliberate in that it was the practice of Counsel for the plaintiff not to quantify the claim until becoming aware of the amount for past economic loss.

8. The plaintiff submits that the judgment should be amended under the slip rule (Uniform Civil Procedure Rules 2005 (NSW) Part 36 Rule 36.17).

9. The defendants concede that the plaintiff claimed interest in the statement of claim and Part 15 statement. The defendants also concede that it was not inappropriate for the plaintiff to wait until judgment was delivered to calculate the precise amount of the interest.

10. However, the defendants suggest that the plaintiff should have made it clear that he was seeking interest well before he did so and complain again that the defendants were simply presented with this further claim (originally totalling $58,000 but now only $14,000 in total). The defendants submit that there was a 3 month delay in the plaintiff notifying them of the claim for interest and, in those circumstances, the claim should be disallowed.

11. I accept that:

1. Interest was sought in the original statement of claim and referred to in the statement of particulars; and

2. It was not sought or referred to in the schedule of damages or any oral submissions because Counsel for the plaintiff considered that any such reference to interest should await any determination of whether the plaintiff was allowed a sum on account of past economic loss.

12. Whilst there is, again, merit in the defendants’ complaint about the failure of those representing the plaintiff to communicate with them or give appropriate notice of the claim, that fault rests with the solicitors and not the plaintiff.

13. The 3 months’ delay between the plaintiff being informed of my judgment and the matter coming on before me again on 21 May 2021 is not a delay of such length that it should deprive the plaintiff of the benefit of the allowance to which he otherwise may have been entitled.

14. As interest was claimed in the statement of claim and as Counsel accepts that the failure to refer to it during submissions was an omission, there may be two bases on which the judgment may be amended to include the allowance for interest under the slip rule being:

1. there was an omission resulting from the inadvertence of the plaintiff’s legal representative[3] ; or

2. my failure to refer to the statement of claim rather than simply the plaintiff’s schedule of damages and submissions might be viewed as an accidental slip or omission.

   3. L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1981) 151 CLR 590 at 594

15. As there is no dispute between the parties that the plaintiff would have otherwise been entitled to interest on past economic loss, for the reasons I have set out, I am satisfied that the sum agreed for interest should be added to the judgment.

16. In the circumstances, the judgment will be amended to include the sum of $14,368.99 on account of interest on past economic loss. The judgment will now be for the sum of $1,435,339 (rounded down).

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Endnotes