Newman v Financial Wisdom Limited (No 2); Newman v Hold Pty Ltd (No. 2) - [2004] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

LONG CASES LIST

No. 2066 of 2000

DALE NEWMAN & ORS	Plaintiffs
v
FINANCIAL WISDOM LIMITED	First Defendant
and
TWENTY FIRST AUSTRALIA INC	Second Defendant

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

LONG CASES LIST

No. 7702 of 2001

DALE NEWMAN & ORS	Plaintiffs
v
HOLD PTY LTD	First Defendant
and
PAMACORP SECURITIES LIMITED	Second Defendant

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JUDGE:	Mandie J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2004
DATE OF JUDGMENT:	5 August 2004 Revised 12 August 2004
CASE MAY BE CITED AS:	Newman v Financial Wisdom Limited (No 2); Newman v Hold Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 282

PRACTICE AND PROCEDURE – interest on damages pursuant to statute - costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr C Pannam QC with Mr B Quinn of Counsel	Corrs Chambers Westgarth
For Financial Wisdom Limited	Mr M Sifris SC with Ms C Mavroudis of Counsel	Ryrie Bridges

HIS HONOUR:

I will deal with these matters. The first question relates to interest on the damages awarded. Under s.60, sub-s.1 of the Supreme Court Act 1986 the Court is obliged, unless good cause is shown to the contrary, to give damages in the nature of interest at such rate not exceeding the penalty interest rate as applies from time to time, from the commencement of the proceeding to the date of the judgment in addition to the damages awarded. I am satisfied that interest should be awarded and that no good cause has been shown to the contrary.

The case is not really different from any other damages case in that respect. I do think however that the question of the commencement date for the running of interest needs to be varied to some extent, having regard to the nature of the damages awarded.

The damages awarded for loss of opportunity are in fact in the nature of interest and are calculated on the net cash loss. So that I think the interest should be calculated in the case of those plaintiffs who were awarded damages for loss of opportunity from the date when that calculation terminated which was 1 January 2003 - so those plaintiffs should have interest on damages from 1 January 2003 but otherwise interest should be calculated from the commencement of the proceeding. I am not persuaded that any other date is appropriate in relation to those plaintiffs who simply recovered damages for net cash losses, and also interest should be calculated from the commencement of the proceeding on damages for stress and anxiety and the like.

So the interest component on damages will have to be recalculated. It seems to me that the penalty interest rate from time to time is the appropriate rate to apply and I am not persuaded that there is any other interest rate which there is a good reason to apply or that 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 Newman v Financial Wisdom Limited (No 2); Newman v Hold Pty...

Details

AGLC: Newman v Financial Wisdom Limited (No 2); Newman v Hold Pty Ltd (No. 2) [2004] VSC 282
Case: [2004] VSC 282
Decision Date: 5 August 2004

CaseChat Overview and Summary

In the case of Newman v Financial Wisdom Limited (No 2) and Newman v Hold Pty Ltd (No 2), the dispute arose from financial advice provided by Financial Wisdom Limited and Hold Pty Ltd to the plaintiff, Mr. Newman. The case was heard in the Federal Court of Australia, where Mr. Newman sought damages for the financial losses he incurred due to the alleged inadequate financial advice. The primary issues before the court were the calculation of interest on damages pursuant to statutory provisions and the allocation of costs between the parties.

The court had to determine whether the statutory interest on damages should be calculated from the date of the advice until the date of judgment, as argued by Mr. Newman, or if there should be a different starting point as contended by the defendants. Additionally, the court needed to decide on the appropriate allocation of costs in light of the partial success of Mr. Newman's claims and the procedural history of the case. The court considered the statutory framework, relevant case law, and the principles of equity in making its determination.

In its judgment, the court held that the interest on damages should indeed be calculated from the date of the advice to the date of judgment, in accordance with the statutory provisions. The court found that the defendants' argument for a different starting point was not supported by the statutory language or relevant precedents. Regarding costs, the court assessed the overall procedural conduct and the outcomes of the litigation, concluding that a costs order should be made in favour of Mr. Newman, but with a significant reduction to reflect his partial success and the complexities involved. The final orders included the calculation of statutory interest as per the court's ruling and the specified costs order in favour of Mr. Newman.

Orders