Nella, J.B. v Kingia Pty Ltd - [1989] FCA 201

Re: JOHN BAPTIST NELLA; CLIFFORD SIDNEY BROWN; BARBARA SYBIL BROWN and
IAN WILLIAM BROWN (Applicants); KINGIA PTY LTD (Cross-Claimant)
And: KINGIA PTY LTD; IAN DAVID ASPHAR; PETER ANTHONY McCOMISH; ROBERT
WILLLIAM WATERS; HILLDODD PTY LTD; MAXWELL DODD; MAURICE HOWARD HILL and
STANLEY RONALD LAYTON (Respondents); HILLDODD PTY LTD (Cross-Respondent)
No. WAG18 of 1983
FED No. 201
Interest - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)

CATCHWORDS

Interest - interest on damages for negligent misstatement including purchase of business - s.32 Supreme Court Act 1935 (WA) - retrospective operation - discretion - delay in prosecution of proceedings - interest on damages representing interest paid on borrowed capital.

Costs - Bullock Order - unsuccessful respondents denying agent's authority - joinder of agents - principles relevant to Bullock Order.

Trade Practices Act 1974 s.52, s.82

Federal Court of Australia Act 1976 s.51A

Judiciary Act 1903 s.79

Supreme Court Act 1935 (WA) s.32

Pavich v Bobra Nominees Pty Ltd (31/10/88; Unrep., French J.)

Nella v Kinga Pty Ltd (1985) 11 FCR 281

Centrepoint Freeholds Pty Ltd v T.N. Lucas Pty Ltd (1985) 6 FCR 133

Foyster v Goynich (No. 2) (1984) WAR 91

Harper v Phillips (1985) WAR 100

Brasser v Graham (1985) WAR 180

Australian National Airlines Commission v Commonwealth (1975) 6 ALR 433

Simonius Vischer & Co. v Holt (1979) 2 NSWLR 322

Clybucca Holdings Pty Ltd v Hill (1984) WAR 44

Komisars v Guardian Assurance Co. Ltd (1973) 5 SASR 515

Bates v Nelson (1973) 6 SASR 149

Zannoni v Loft (1975) 13 SASR 208

Clearihan v Allen (1978) 18 SASR 496

Sanderson v Blyth Theatre Co. (1903) 2 KB 533

Bullock v The London General Omnibus Co. (1907) 1 KB 264

Gould v Vaggelas (1985) 157 CLR 215

Johnson Tyne Foundry Pty Ltd v Maffra Corporation (1948) 77 CLR 544

HEARING

PERTH

#DATE 1:5:1989

Counsel for the Applicants: Mr S. Owen-Conway

Solicitors for the Applicants: Corser & Corser

Counsel for the First and Mr R. Le Miere Second Respondents:

Solicitors for the Respondents: Dwyer Durack & Dunphy

Counsel for the Fourth, Fifth Mr D. Clyne and Sixth Respondents:

Solicitors for the Fourth, Michael Whyte & Co. Fifth and Sixth Respondents:

ORDER

The first and second respondents pay to the applicants pre-judgment interest on the damages awarded herein in the amount of $24,760.

The first and second respondents pay the applicants' costs of the action.

The applicants pay the fourth, fifth and sixth respondents' costs of the action.

The first and second respondents indemnify the applicants in relation to the costs of the action payable by the applicants to the fourth, fifth and sixth respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

On 2 December 1988 the applicants obtained judgment against the first and second respondents in the sum of $75,670.00. The judgment sum was by way of damages found to have been suffered by the applicants resulting from a contravention…

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: [1989] FCA 201
Decision Date: 01 MAY 1989

CaseChat Overview and Summary

Nella, J.B. v Kingia Pty Ltd involved the plaintiff seeking damages for negligent misstatement, specifically related to the purchase of a business. The case was heard in the Supreme Court of Western Australia. The primary dispute centred on the calculation of interest on the damages awarded, including interest on damages representing interest paid on borrowed capital, and the retrospective operation of section 32 of the Supreme Court Act 1935 (WA). Additionally, the court had to consider the impact of the delay in prosecution of the proceedings on the interest awarded.

The legal issues the court was required to decide included whether section 32 of the Supreme Court Act 1935 (WA) could be applied retrospectively, and if so, to what extent. Another significant issue was the appropriate rate and period for which interest should be awarded on the damages, including the interest on damages representing interest paid on borrowed capital. The court also had to consider whether the delay in prosecuting the proceedings should affect the calculation of interest.

The court found that section 32 of the Supreme Court Act 1935 (WA) could be applied retrospectively, but only to the extent that it was just and equitable to do so. In this case, the court determined that it was appropriate to apply the section retrospectively, given the circumstances. Regarding the interest on damages, the court held that interest should be awarded from the date of the negligent misstatement up until the date of judgment, including interest on damages representing interest paid on borrowed capital. The court also noted that while there was a delay in prosecuting the proceedings, this did not absolve the respondents from liability for the full amount of interest. The court emphasised the importance of compensating the plaintiff fully for the losses suffered due to the negligent misstatement.

The court ordered the first and second respondents to pay pre-judgment interest on the damages awarded in the amount of $24,760, along with the applicants' costs of the action. The applicants were ordered to pay the costs of the fourth, fifth, and sixth respondents. Additionally, the first and second respondents were to indemnify the applicants in relation to the costs of the action payable by the applicants to the fourth, fifth, and sixth respondents. The settlement and entry of orders were dealt with in Order 36 of the Federal Court Rules.

Orders

Orders of the court

The first and second respondents pay to the applicants pre-judgment interest on the damages awarded herein in the amount of $24,760.

The first and second respondents pay the applicants' costs of the action.

The applicants pay the fourth, fifth and sixth respondents' costs of the action.

The first and second respondents indemnify the applicants in relation to the costs of the action payable by the applicants to the fourth, fifth and sixth respondents.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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