Multispan v Portland (No 2) - [2001] NSWSC 1047

CITATION: MULTISPAN v PORTLAND (NO 2) [2001] NSWSC 1047

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2869/00

HEARING DATE(S): 30/10/01

JUDGMENT DATE:
16 November 2001

PARTIES :

Multispan Constructions No 1 Pty Limited - First Plaintiff
Stipo Lovrinovic - Second Plaintiff
Vlatko Rasic - Third Plaintiff
Mark Komadina - Fourth Plaintiff
Stipo Kasalo - Fifth Plaintiff
14 Portland Street Pty Limited - First Defendant
CVC Communication & Technology Pty Limited - Second Defendant
Broadway Developments Pty Limited - Third Defendant
Ronald Charles Dunkley - Fourth Defendant
St Helens Broadway Pty Limited - Fifth Defendant
Sam Zdrilic - Sixth Defendant
Gavin Solomon - Seventh Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr M. Komadina (director) - First Plaintiff
Mr A.M. Colefax - First to Third Defendants
Mr G.L. Turner - Sixth Defendant

SOLICITORS: Coudert Brothers - First to Third Defendants
Alan Brown & Company - Sixth Defendant

CATCHWORDS: PROCEDURE - interest after judgment - whether debt merged in judgment - whether interests of justice require that interest continue at higher contracted rate - order for such interest as necessary to ensure contracted interest continues

LEGISLATION CITED: Supreme Court Act 1970

CASES CITED: Gould v Vaggelas (1985) 157 CLR 215
Mercantile Credits Limited v McDowell [1982] NSWLR 101
State Bank of New South Wales Ltd v Chia (2000) 50 NSWLR 587
Asia Pacific International Pty Ltd v Dalrymple [2000] 2 Qd R 229
Ex parte Fewings (1883) 25 ChD 338
Economic Life Assurance v Usbourne [1902] AC 147
London Borough of Ealing v El Isaac [1980] 1 WLR 932

DECISION: Refer paragraph 10

IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J
FRIDAY, 16 NOVEMBER 2001 2869/00 - MULTISPAN CONSTRUCTIONS NO 1 PTY LTD v 14 PORTLAND STREET PTY LTD & ORS (NO 2)

JUDGMENT HIS HONOUR:

1 The cross-claimants to the second cross-claim, 14 Portland Street and CVC Communications, seek an order that interest on the judgment sum continue to accrue at a rate of 25 per cent per annum compounded monthly from 17 October 2001 until the date of payment of the judgment sum and interest. This follows the order on 17 October 2001 that a verdict in the sum of $2,352,525.25 be entered for those cross-claimants. The interest rate of 25 per cent per annum which the cross-claimants seek to have continued is the rate applicable under the relevant financing and security documents between the parties.

2 The application is founded on s.95(1) of the Supreme Court Act 1970 which causes interest to run on a judgment debt at the prescribed rate, unless the court makes some other order.

3 A question addressed in submissions is whether or not the promise to pay interest has, in the circumstances of this case, merged in the judgment of 17 October 2001. Often, of course, the right of action which is the debt is discharged by judgment and there is nothing left which attracts interest in the sense of being a principal sum upon and in respect of…

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 Multispan v Portland (No 2)

Details

AGLC: Multispan v Portland (No 2) [2001] NSWSC 1047
Case: [2001] NSWSC 1047
Decision Date: 16 November 2001

CaseChat Overview and Summary

Multispan sought a declaration that interest would continue to accrue on its debt after the judgment was entered, as per the contract between the parties. The primary dispute was whether the debt had merged into the judgment, thereby extinguishing any further interest, or if the terms of the contract required the interest to continue at a higher rate than the statutory rate. The court had to determine whether the interests of justice required that interest continue at the higher contracted rate, as stipulated in the contract.

The court held that the debt had not merged in the judgment and that the contract's terms were clear in requiring interest to continue at the higher rate. The court reasoned that allowing interest to accrue at the higher contracted rate was necessary to ensure that the creditor was fully compensated for the use of their money and to uphold the integrity of the contractual agreement. The court found that the interests of justice required the enforcement of the contract terms, which mandated the continuation of interest at the higher rate.

The court ordered that interest would continue to accrue on the debt at the higher contracted rate as stipulated in the contract. This decision upheld the contractual terms and ensured that the creditor was compensated in accordance with the agreement. The court's ruling was a clear affirmation of the importance of contractual terms and the need to enforce them to achieve justice in commercial dealings.

Orders