Nu Line Construction Group Pty Ltd v Fowler (No 3)

Case •

[2014] NSWCA 229

•

17 July 2014

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nu Line Construction Group Pty Ltd v Fowler (No 3) [2014] NSWCA 229
Hearing dates:On the papers
Decision date: 17 July 2014
Before: Basten JA at [1];
Barrett JA at [14];
Young AJA at [15]
Decision:

Vary order (2) made on 17 March 2014, with effect from that date, to read:

Give judgment for the appellant against the respondents in the sum of $251,162.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INTEREST - recoverability of interest - pre-judgment interest - calculation of interest - date from which interest ran - date when cause of action arose - Civil Procedure Act 2005 (NSW), s 100(1)(b)

PRACTICE AND PROCEDURE - variation of orders - judgment sum failed to include judgment interest - variation to judgment sum to account for interest on money recovered by appellant
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Limitation Act 1969 (NSW), s 14
Cases Cited: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51
Nu Line Construction Group Pty Ltd v Fowler (No 2) [2014] NSWCA 188
Category:Consequential orders
Parties: Nu Line Construction Group Pty Ltd (Appellant)
Peter Fowler (First Respondent)
Gabriella Grippaudo (Second Respondent)
Representation: Counsel:
Mr T S Hale SC/Mr B R Kremer (Appellant)
Mr H W M Stitt (Respondents)
Solicitors:
Diamond Conway (Appellant)
Hunter Lawyers (Respondents)
File Number(s):CA 2012/203010
 Decision under appeal 
Jurisdiction:
9111
Citation:
[2012] NSWSC 587; [2012] NSWSC 816
Before:
Ward J
File Number(s):
2008/280834

Judgment

  1. BASTEN JA: The principal judgment in this matter was delivered on 17 March 2014: Nu Line Construction Group Pty Ltd v Fowler [2014] NSWCA 51. A second judgment, delivered on 12 June 2014 dealt with certain consequential matters, including costs: Nu Line Construction Group Pty Ltd v Fowler (No 2) [2014] NSWCA 188. Through an oversight on the part of the Court, one other significant issue, not resolved by agreement, remained outstanding, namely the calculation of interest on the moneys recovered by the appellant from the respondents.

  1. There was one other minor matter, which could have been addressed by a consent variation to the amount of the judgment the subject of order (2) made on 17 March 2014, but which flows into the calculation of interest. Thus, the appellant accepted that the judgment in its favour stated a principal sum which was $6 in excess of the correct calculation. That correction should be made.

  1. The calculation of interest requires identification of four elements, namely (a) the capital sum or sums; (b) the rate of interest; (c) the date from which interest runs, and (d) the end of the period.

  1. One possible commencement date was the date on which each of the various amounts was paid by the appellant. That would have complicated the calculation significantly. However, the appellant does not seek interest calculated on that basis, nor would the statutory basis relied have supported such a claim. The commencement date remains in issue, but the capital sum does not, being $151,552.95. The rates of calculation are also not in dispute: they are the rates prescribed from time to time for the purposes of s 100(1)(b) of the Civil Procedure Act 2005 (NSW). It is agreed that the calculation involves simple interest, without compounding: s 100(3)(a).

  1. Although the calculations prepared by the respondent produced a different end date, no issue was expressly taken with the appellant's proposal that interest run until the date of the principal judgment, namely 17 March 2014.

  1. The outstanding issue was, therefore, the commencement date for the calculation. Three potentially relevant dates were identified, namely:

(a) the date at which the purpose for the payments failed (July 2006);

(b) the date of the first demand for repayment of the moneys paid (18 February 2011), and

(c) the date from which interest was claimed to be calculable pursuant to the pleading relied on at trial (July 2011).

  1. It is convenient to deal first with the last option, as that was the primary position adopted by the respondents.

  1. The respondents identified the claim for interest running from July 2011 as reflecting "an election" made by the appellant in its pleadings to which it should be required to adhere. The appellant denied that there was any election and sought to rely upon an affidavit of its solicitor explaining that the date was the result of a typographical error prepared when the last iteration of the statement of claim was drafted, at a different firm of solicitors from those having the electronic version, the new version being "copy-typed". The respondents, while seeking to rely upon the later date, did not object to the reliance on the affidavit, nor did they seek to respond.

  1. There is no reason to doubt the explanation for the change from the amended statement of claim to the further amended statement of claim as involving a typographical error. However, an explanation for the mistake might not be sufficient if the matter were run at trial on the basis of figures contained in the further amended statement of claim. However, that was not shown to be so. On the contrary, the trial judge noted that had she been of the view that the claim was not statute barred, she would have awarded a capital sum together with restitutionary interest on that amount "as from the date on which the contemplated state of affairs had failed to materialise (which ... would have been from July 2006) and statutory interest from the date the proceedings were commenced": Nu Line Construction Group Pty Ltd v Fowler (aka Grippaudo) [2012] NSWSC 587 at [326]. Further, it is unlikely that the respondents placed reliance on the date of July 2011, contained in par 24 of the further amended statement of claim, as it was unrelated to any date set out elsewhere in the pleading. In the circumstances, it is not appropriate to hold the appellant to its claim for interest only from July 2011.

  1. The remaining contest (which is significant as it involves a period of some four and a half years) is between the date at which the purpose for which the payments were made failed and the date of demand.

  1. On the basis that interest up to judgment is claimed pursuant to s 100 of the Civil Procedure Act, the relevant period extends "from the time the cause of action arose until the time the judgment takes effect": s 100(1)(b). It is necessary, therefore, to determine the time at which the cause of action arose. That issue was central to the principal judgment and the resolution of the defence under the Limitation Act 1969 (NSW), s 14. Once the proposition that the sale of the land to the appellant had "failed to materialise" by September 2002 was rejected, it was necessary to determine when between that time and September 2008, when proceedings were commenced, the project was abandoned. The critical point in time, accepted by the trial judge on the basis that the claim had not earlier become statute barred, was the meeting of July 2006. Accordingly, the appellant's submission that interest be calculated from July 2006 should be accepted. However, the precise date of the meeting was not established and the calculation should commence on 1 August 2006, not 1 July, being the figure adopted by the appellant in its calculation. The total interest calculated by the appellant was $100,864.82; that should be reduced by $1,255, giving a net figure of $99,609.

  1. That amount should be added to the adjusted capital sum (rounded to the nearest dollar). It is convenient to vary the amount ordered by way of judgment on 17 March 2004 from $151,558.95 to $251,162.

  1. Accordingly, the Court makes the following order:

Vary order (2) made on 17 March 2014, with effect from that date, to read:

Give judgment for the appellant against the respondents in the sum of $251,162.

  1. BARRETT JA: I agree with Basten JA.

  1. YOUNG AJA: I agree with Basten JA.

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Decision last updated: 17 July 2014

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