O'Farrell v McCarthy (No 4) - [2025] NSWSC 856

Supreme Court

New South Wales

Medium Neutral Citation: O’Farrell v McCarthy (No 4) [2025] NSWSC 856
Hearing dates: 1 August 2025
Date of orders: 1 August 2025
Decision date: 01 August 2025
Jurisdiction: Equity
Before: Elkaim AJ
Decision:
1. The first defendant, Mr McCarthy, is to pay pre-judgment interest pursuant to s 100(1) of the Civil Procedure Act 2005 (NSW) on the sums stated in Order 5 made on 26 March 2025 in the sum of $116,839.23.
2. The first defendant, Mr McCarthy, is to pay post-judgment interest pursuant to s 101(1) of the Civil Procedure Act 2005 (NSW) in the sum of $21,142.93 and continuing to accrue.
3. The first defendant, Mr McCarthy, is to pay the plaintiffs’ costs in accordance with Order 10 made on 26 March 2025 on a gross sum basis in the amount of $110,000, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
4. The first defendant, Mr McCarthy, is to pay the plaintiffs’ costs of preparing for and appearing at the relisting of the proceedings in respect of costs and interest on a gross sum basis in the amount of $11,500, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW).
5. Order 12(a) of the freezing order made by Kunc J on 28 March 2023 is varied so as to add a further subparagraph:
(iv) pay all amounts owing to the plaintiffs including the verdict sums in Order 5 made on 26 March 2025 and the interest and costs as ordered on 1 August 2025.

Catchwords:
JUDGMENTS AND ORDERS — calculation of pre-judgment interest and post-judgment interest
COSTS — application for gross sum costs order pursuant to s 98(4) Civil Procedure Act 2005 (NSW) — court’s discretion as to quantum of gross sum costs order
CIVIL PROCEDURE — interim preservation — freezing orders — variation of — varied to be discharged on payment of amounts owing

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 98(4), 100, 101
Evidence Act 1995 (NSW), s131
Uniform Civil Procedure Rules 2005 (NSW), r 36.7

Cases Cited:
O’Farrell v McCarthy (No 3) [2025] NSWSC 249
Hamod v State of New South Wales [2011] NSWCA 375

Category: Costs
Parties: Brian Richard O’Farrell (First Plaintiff)
Talentpool Recruitment Pty Ltd (Second Plaintiff)
Talentpool Consulting Pty Ltd (Third Plaintiff)
Trevor Gerrard McCarthy (First Defendant)
Talentpool Recruitment Pty Ltd (Second Defendant)
Talentpool Consulting Pty Ltd (Third Defendant)
Representation:
Counsel:
S Steinhoff (Plaintiffs)
Solicitors:
Lander & Rogers (Plaintiffs)

File Number(s): 2023/93781
Publication restriction: No

JUDGMENT

On 26 March 2025, I handed down my decision in the principal dispute in this matter (O’Farrell v McCarthy (No 3) [2025] NSWSC 249). I made a number of orders which can be found in para 150 of the decision.
For present purposes the relevant orders were Orders 5, 10 and 11:

“5. An order pursuant to s 1317H of the Corporations Act 2001 (Cth) that the first defendant compensate the second plaintiff for damage resulting from his breaches of ss 180 and…

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 O'Farrell v McCarthy (No 4)

Details

AGLC: O'Farrell v McCarthy (No 4) [2025] NSWSC 856
Case: [2025] NSWSC 856
Decision Date: 01 August 2025

CaseChat Overview and Summary

The case of O'Farrell v McCarthy (No 4) involved the calculation of pre-judgment and post-judgment interest, as well as an application for gross sum costs pursuant to section 98(4) of the Civil Procedure Act 2005 (NSW). The court also considered the variation of interim preservation orders, specifically freezing orders, which were varied to be discharged upon the payment of amounts owing. The parties were O'Farrell, the plaintiff, and McCarthy, the defendant, with the dispute centering around financial obligations and the enforcement of these through various court orders.

The legal issues the court needed to resolve were the proper calculation of pre-judgment interest in accordance with the statutory provisions and the equitable principles governing post-judgment interest. Additionally, the court had to exercise its discretion in determining the quantum of gross sum costs under section 98(4) of the Civil Procedure Act 2005 (NSW). Finally, the court needed to consider the appropriateness of varying the freezing orders to discharge them upon payment of the amounts owed, which had implications for the interim preservation of assets.

In addressing these issues, the court carefully reviewed the applicable statutory and equitable principles for interest calculations, and it determined the appropriate amount of pre-judgment and post-judgment interest based on the evidence presented. The court also exercised its discretion under section 98(4) of the Civil Procedure Act 2005 (NSW), considering the conduct of the parties and the factors outlined in the legislation, to determine the quantum of the gross sum costs order. The variation of the freezing orders was considered in the context of the payment of the amounts owing, and the court concluded that it was appropriate to discharge the orders upon such payment, balancing the need for interim preservation against the resolution of the underlying financial dispute.

The final orders included the determination of the specific amounts of pre-judgment and post-judgment interest, the setting of gross sum costs in accordance with the court's discretion, and the variation of the freezing orders to discharge them upon payment of the amounts owing. These orders reflect the court's considered approach to each of the issues raised in the case.

Orders