O'Neill v Filip
[2022] VCC 1697
•19 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-00136
| STEPHEN MARK O'NEILL | Plaintiff |
| V | |
| ROSA MARIA FILIP | Defendant |
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JUDGE: | HER HONOUR JUDGE A RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 July 2022, written submissions filed 5, 22 and 30 August 2022, further hearing on 20 September 2022 | |
DATE OF JUDGMENT: | 19 October 2022 | |
CASE MAY BE CITED AS: | O'Neill v Filip | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1697 | |
REASONS FOR JUDGMENT
Subject:CONTRACT – MORTGAGES
Catchwords: Debt due under loan agreement and secured by mortgage – whether contractual interest payable on a simple or compound basis – interest under statute – alternatively, Hungerfords’ claim for loss of use of the moneys – whether interest partially statute barred
Legislation Cited: County Court Civil Procedure Rules 2018; Limitation of Actions Act 1958; Magistrates’ Court Act 1989; Magistrates’ Court General Civil Procedure Rules 2020; Penalty Interest Rates Act 1983; Supreme Court Act 1986; Transfer of Land Act 1958
Cases Cited:Agricultural and Rural Finance Pty Ltd v John Edward Atkinson [2010] NSWSC 1396; Barnes v Glenton [1899] 1 QB 885; Brisbane City Council v Amos (2019) 372 ALR 366; Clarke v Foodland Stores (1993) 2 VR 382; Cook v Fowler (1874) LR 7 HL 27; Decorrado v Manoukian [2009] VSC 451; Hall v Hall (2018) VSC 131; Hardie & Ors v Shadbolt & Ors [2004] WASCA 175; Hungerfords v Walker (1989) 171 CLR 125; Lai v Gong (1997) 8 BPR 15837; Oztech Pty Ltd v Public Trustee of Queensland (No 15) [2019] 269 FCR 349; Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No7) [2019] QSC 241; Valimi Pty Ltd v Maniotis [2003] VSC 357
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Black | Kingsford Lawyers |
| For the Defendant | Ms M Orwin (27 & 28 July) | Not applicable |
| Mr P Fary SC with Ms A Storey (20 September) | CIE Legal |
HER HONOUR:
1By this proceeding, the plaintiff seeks to recover funds advanced to the defendant under a loan agreement. The loan moneys were secured by a mortgage over a property owned by the defendant situated at 13 Capricorn Court, Taylors Lakes (“the property”).[1] The loan agreement and mortgage were subsequently assigned to the plaintiff. Due to the defendant’s default in repayment, the plaintiff seeks judgment for the debt and possession of the property.
[1]Being the land more particularly described in Certificate of Title Volume 10430, Folio 885
2The principal amount advanced under the loan agreement is $15,000. The plaintiff seeks to recover this sum together with:
(a) interest pursuant to the loan agreement;
(b) alternatively, interest pursuant to statute;
(c) alternatively, damages in the nature of interest for loss of use of the funds.
3The defendant agreed she signed the loan agreement and the mortgage relied upon by the plaintiff. The defendant did not challenge the validity of these documents or the plaintiff’s capacity to enforce them in her amended defence. The defendant admitted in paragraph 3 of the amended defence that she covenanted to repay the principal sum together with interest on that principal sum on 3 August 2011.
4The focus at the hearing was on the plaintiff’s right to claim interest on the debt after the term of the loan expired either under contract, statute, or in accordance with the principles in Hungerfords v Walker.[2] The parties proposed various competing alternatives on how interest should be calculated.
[2] (1989) 171 CLR 125
Background
5The defendant and her husband, Milan Filip, have lived at the property for some 21 years. In 2009, they fell behind in their repayments due under a home loan held at that time with Home Loans Limited, a company associated with the Adelaide Bank. The home loan was secured by a mortgage over the property. Mr and Mrs Filip were facing eviction as a consequence of their default in making repayments. They were experiencing financial difficulties in part due to Mr Filip being a bankrupt.
6In around March 2009, Mr Trifon Gouvas, the Filips’ family accountant, referred the Filips to the plaintiff for assistance in seeking to refinance the loan held with Home Loans Limited. Mr Gouvas had previously referred clients from his accountancy practice to the plaintiff for financial advice and assistance.
7As a result of that referral, the defendant and her husband met with the plaintiff at his offices in Port Melbourne.
8The plaintiff arranged a referral to Barnes Investment Group Pty Ltd (“BIGPL”), a private lender trading as Short Term Money Solutions. The director of BIGPL was Martyn Barnes. BIGPL agreed to provide an interim loan to the defendant in the sum of $350,000 on a short-term basis. The defendant signed a loan agreement with BIGPL dated 7 April 2009 for the sum of $350,000. This amount was advanced by BIGPL and used to discharge the mortgage with Home Loans Limited.
9On 3 August 2009, the defendant signed a second loan agreement with BIGPL for $15,000, representing the balance of fees charged by BIGPL in relation to providing the $350,000 loan. On 4 August 2009, the defendant, as mortgagor, and Mr Barnes, in his capacity as a director of BIGPL as mortgagee, signed a second mortgage over the property securing the advance of $15,000 (“the mortgage”). The plaintiff deposed that the defendant signed the mortgage at his office, which he witnessed.
10Mr Filip transferred his interest in the property to the defendant and she was registered as sole proprietor on 11 August 2009. On the same day, BIGPL registered its mortgage securing the advance of $350,000. Subsequently, on 1 September 2009, Westpac opened a home loan account for the defendant with a maximum loan amount of $360,000 (“the Westpac mortgage”). The defendant agreed in cross-examination that she had given instructions to Westpac to pay out the $350,000 loan from BIGPL.
11On 10 September 2009, the BIGPL mortgage was discharged and the Westpac mortgage was registered. The defendant gave evidence that she had received documentation from Westpac relating to the Westpac mortgage. She could not be sure precisely when she did so, but thought it was about a month after her meetings with the plaintiff. Westpac wrote to the defendant on 4 September 2009 confirming that it had opened a new loan account for her and listing payments made on her behalf, including the sum of $359,194 to BIGPL.
12In or about January 2011, the plaintiff said that Mr Barnes had contacted him seeking assistance with the recovery of the amount outstanding on the loan. The plaintiff says he then called the defendant regarding repayment. He deposed as to the following:[3]
“I telephoned Mrs Filip and said words to the effect, ‘Rosa if you don’t pay monthly payments at least, you could be sold up again, and you know this stress that caused you the last time as well as all the extra costs’. Mrs Filip replied with words to the effect, ‘I promise that I will start paying’. I also spoke with Mr Gouvas and I told him to speak with Mrs Filip. He told me words to the effect ‘She knows she hasn’t paid and needs to start paying otherwise her house will be sold’.”
[3] Paragraph 16 of the plaintiff’s affidavit sworn 4 July 2022
13The mortgage, the subject of this proceeding, was registered on 19 April 2011.
14On 25 July 2011, Mr Barnes, on behalf of BIGPL, and the plaintiff, on behalf of his company Credit Loans Australia Pty Ltd (“CLA”), signed a Deed of Assignment of Debt, assigning the debt, the loan agreement and the mortgage to CLA. As of 10 July 2011, the amount of the debt was $20,813.46.
15On 29 July 2011, CLA sent a letter to the defendant addressed to the property advising her of the assignment of the debt from BIGPL to CLA and attaching a copy of the assignment. The defendant says she never received this letter.
16In the course of his oral evidence, the plaintiff said he spoke to the defendant several times in January 2012. He said it was discussed that the figure owed under the loan was over $20,000. He said the defendant promised to make payments but they were not made. The plaintiff also had discussions with Mr Gouvas at the same time to the effect that if Mrs Filip did not pay, the debt would keep increasing and she might lose her home.
17In contrast, the defendant’s evidence was that she had never spoken to the plaintiff by telephone. She had only met him on two occasions at his office, namely, when they went to discuss the issue of refinancing initially and later when she returned to his office to sign various documents. She denied receiving any phone calls or receiving any correspondence from the plaintiff seeking repayment of the loan until late 2021. The defendant knew the plaintiff by the name of “Stephen Marks”. For reasons which were not explained, the plaintiff used this name at the time of these events rather than his actual name, which is Stephen Mark O’Neill. There was no dispute that they were the same person.
18The plaintiff and Mr Barnes exchanged a series of emails on 30 January 2012.[4] The plaintiff told Mr Barnes that he “did a bit chasing, said he was going to pay, but of course hasn’t”. The reference to “he” in the email could presumably be a reference to the defendant’s husband or Mr Gouvas. There is no mention in the contemporaneous email to the plaintiff speaking with the defendant. The plaintiff then says he would rather just let the debt accrue or, if Mr Barnes would prefer, the plaintiff could pay $5,000 in cash and have the mortgage transferred to him. Mr Barnes replied that he could not be bothered chasing and agreed to transfer the mortgage to the plaintiff for $5,000. The plaintiff replied “Understood, I treat it as my super.” The plaintiff said in his oral evidence that he later agreed with Mr Barnes to the increased sum of $10,000 to transfer the mortgage, which he then paid.
[4] Exhibit D1
19A transfer of mortgage from BIGPL to CLA was registered on 18 June 2012. The signed transfer is dated 25 July 2011. The consideration stated in the transfer is $10,000.
20On 21 November 2019, the plaintiff executed a Deed of Assignment of Debt assigning the rights under the loan and mortgage from CLA to himself. He did so as he was winding down his affairs prior to retiring and was seeking to deregister CLA. This deed records the amount due for the debt in the sum of $65,406.21 as of 26 October 2010. CLA was later voluntarily deregistered on 20 May 2020.
21On 9 September 2021, the plaintiff’s then solicitors, MGA Lawyers, sent a letter to the defendant advising of the assignment of the debt to the plaintiff in his personal capacity and requesting repayment.
22On 23 September 2021, MGA Lawyers sent a letter to the defendant seeking her signature on a Westpac customer payment authority form to allow the plaintiff to proceed with the transfer of the mortgage from CLA to him.
23The plaintiff registered a transfer of mortgage from CLA to himself on 19 November 2021.
24On 22 November 2021, MGA Lawyers sent a letter to the defendant attaching a demand together with a notice to pay pursuant to s76 of the Transfer of Land Act 1958.
25This proceeding was commenced by writ filed on 18 January 2022. The plaintiff claimed the principal debt together with interest in the sum of $120,844.17 (calculated to 10 December 2021), bringing the total amount claimed to $135,844.17.
26On 12 April 2022, Judicial Registrar Bennett ordered that the matter be listed for trial on 25 July 2022, following an application for expedition by the plaintiff due to his ill health. The application for expedition was supported by the defendant. The hearing was adjourned to 27 July 2022 pursuant to orders made on 20 July 2022.
27Prior to the hearing, the defendant had been self-represented. She was able to obtain the benefit of pro bono assistance from a member of counsel of the Victorian Bar for the trial. Counsel then appeared on 27 and 28 July 2022.
28Following the conclusion of the oral evidence, the parties were directed to file and serve written submissions. Counsel then acting for the defendant advised the court shortly after the hearing that she was not in a position to prepare the submissions due to ill health and had returned her brief. Alternative counsel were engaged on a pro bono basis. Solicitors came on the record for the defendant on 17 August 2022 and the defendant’s new counsel filed written submissions dated 22 August 2022.
29Leave was given to the plaintiff to file and serve an amended statement of claim on the second day of the hearing,28 July 2022. The amendments were restricted to the prayer for relief. The amended pleading introduced an alternative claim for damages in the nature of loss of use of the funds. Counsel then appearing for the defendant did not seek leave to file an amended defence in response to the plaintiff’s amendments.
30An application was subsequently made on behalf of the defendant to seek leave to file an amended defence dated 23 August 2022, and to adduce some further limited evidence identified in an affidavit of the defendant sworn 23 August 2022. The amended defence pleaded for the first time a defence under s5(7), alternatively s1(a), of the Limitation of Actions Act 1958. The defence raised is that any claim by the plaintiff for interest accrued after 4 September 2015 (6 years after 4 September 2009 when the first monthly interest payment fell due) is statute barred.
31The defendant’s application was listed for hearing on 20 September 2022. The plaintiff appeared in person and opposed the application. For the reasons given at the conclusion of the hearing of that application, I granted leave to the defendant to file and serve the amended defence. Leave was also granted to the defendant to adduce the evidence set out at paragraph 16 of her affidavit sworn 23 August 2022.
Evidence of witnesses
32The plaintiff relied upon two affidavits sworn on 4 and 26 July 2022 which stood as his evidence in chief.
33The plaintiff also relied upon a notice of intention to adduce hearsay evidence dated 11 July 2022. The plaintiff gave evidence about an email chain between himself and Mr Barnes dated 6 July 2022 in which Mr Barnes, who now resides in Dubai, agreed to the following:
(a) he was a director of BIGPL in August 2009;
(b)BIGPL entered into a loan agreement with the defendant relating to an advance of $15,000 in August 2009;
(c)neither he nor BIGPL received any payment of either principal or interest in relation to the $15,000 advanced; and
(d) BIGPL assigned the $15,000 loan and mortgage securing that sum to CLA.
34The defendant gave oral evidence at trial. She also relies upon the further evidence set out in paragraph 16 of her affidavit dated 23 August 2022. This further evidence was that she had not made any repayments under the loan agreement and had not given any written acknowledgment of the $15,000 debt after 4 September 2015. The introduction of this evidence was not objected to by the plaintiff at the hearing held on 20 September 2022. This evidence was consistent with the evidence already given on behalf of the plaintiff, namely, that no repayments of the loan had occurred.
35Mr Gouvas, the Filips’ family accountant, gave brief oral evidence at the trial. His evidence was that the plaintiff only contacted him after the refinance was complete to tell him “everything was fine” and again after commencing this proceeding. This evidence was not challenged in cross-examination.
Entitlement to relief and form of orders
36There was no contest about the fact that the defendant signed the loan agreement together with the mortgage. She accepted that the signatures on those documents were hers. The defendant said that she had not read any of the documents but simply signed them as requested at the plaintiff’s office. It appeared that she left financial matters in the hands of her husband and Mr Gouvas to resolve with the plaintiff. She did not take any active part in the negotiations relating to the refinance of the home loan on the property.
37The defendant could not remember the loan provided by BIGPL on an interim basis in the amount of $350,000. She only appeared to accept that this was the case when presented with the various documents at trial. Her recollection of events was simply that she had obtained a loan from Westpac. She had no recollection of the loan agreement for $15,000 or the mortgage.
38As can be readily observed, human memory is fallible, and factored into this is the stress, no doubt, that the defendant was under at the time of the events in 2009 when she and her husband were faced with the prospect of eviction. I do not consider the defendant was seeking to mislead the court when giving evidence, but merely that her recollection of events at the time was very hazy.
39There was some factual dispute in the evidence between the parties. The defendant was emphatic that she had had no contact with the plaintiff other than at the two meetings held at his office in 2009. She denied that she had ever spoken to him on the telephone, whereas the plaintiff’s evidence was that he had spoken to her in 2011 and on a number of occasions in January 2012 pursuing repayment. He also claimed that he had spoken to Mr Gouvas pursuing repayment. The issue of whether the plaintiff telephoned the defendant in either 2011 or 2012 ultimately has no bearing on the enforceability of the loan agreement or the mortgage.
40Another issue of contention was whether the defendant had received the letter dated 29 July 2011, in which she was advised of the assignment of the debt from BIGPL to CLA. The defendant denied receiving the letter. As counsel for the plaintiff pointed out, this dispute has no effect on the issues to be resolved as the assignment was equitable until such time as notice was effected upon the assignee when the assignment became legal. He argued that, in any event, notice was given to perfect the legal assignment at the latest at the time of the issue of the proceeding. There was no challenge made as to the validity of the assignment by the defendant in her amended defence or in the submissions advanced on her behalf.
41I am satisfied on the evidence that the plaintiff proved the defendant is liable for the debt under the loan agreement and the debt of $15,000 was secured by the mortgage. The plaintiff admitted signing the loan agreement and mortgage. She also admitted the terms of the loan in her amended defence requiring her to pay the principal sum and interest on that sum on 3 August 2011, when the term of the loan expired. I am also persuaded that the plaintiff had capacity to bring this proceeding in his own name, given the assignments of debt that took place and the transfers of the mortgage. The defendant acknowledged she received the letters of demand from the plaintiff’s former solicitors sent in 2021, including the s76 notice. The debt and interest payable remain outstanding. Consequently, I find that the plaintiff is entitled to judgment for the principial sum and interest together with an order for possession of the property.
42The defendant submitted the following orders would be appropriate if the court was satisfied of the plaintiff’s entitlement to relief:
(a) The defendant pay to the plaintiff the sum of $20,323.56 plus statutory interest, to be calculated on a rate or period in accordance with the justice of the case.
(b) Judgment for the plaintiff for possession of the whole of the land in Certificate of Title Volume 10430 Folio 885 is stayed for 60 days.
(c) The defendant pay such percentage as the court considers appropriate of the plaintiff’s costs of the proceeding on a standard basis to be assessed in accordance with Appendix A to the Magistrates’ Court General Civil Procedure Rules 2020 excluding the following:
i.Any costs that would not have been incurred had the proceeding been commenced in the Magistrates’ Court.
ii. Any costs associated with the plaintiff’s application for expedition.
iii. Any costs associated with the Hungerfords’ damages claim.
(d) The plaintiff pay the defendant’s costs of the proceeding thrown away by reason of the matter being issued in the County Court, including the costs of pro bono counsel in respect of the closing submissions in accordance with County Court Civil Procedure Rules 2018 rr 63A.35.1, 63A.35.3, such costs set off against the costs referred to in sub-paragraph (c).
43In addition to judgment for the debt and possession, the plaintiff claimed he was entitled to interest calculated on the following alternative bases up to 4 August 2022:
(a) 18 per cent compound interest calculated at $152,282.21;
(b) 18 per cent per annum simple interest calculated at $50,076.75;
(c) compound interest calculated pursuant to the rate set by the Penalty Interest Rates Act 1983 at $66,000.11; or
(d) simple interest calculated pursuant to the rate set by the Penalty Interest Rates Act 1983 at $45,118.79.
The calculation of interest under the loan agreement
44The loan agreement has a fixed rate of 12 per cent per annum but in the event of default, a higher interest rate of 18 per cent per annum will apply. Interest repayments are due monthly in arrears on drawdown of the loan funds. The term of the loan was two years, expiring on 4 August 2011. The first repayment was due on 4 September 2009.
45The loan agreement is silent on whether interest should be charged on a simple or compound rate. The plaintiff seeks interest on a compound basis. The plaintiff contends there is no longer any presumption that interest should be calculated on a simple basis in the absence of express provisions. It is necessary to look at the transaction in its entirety to determine if interest should be calculated on a simple or compound basis.
46The circumstances were that the defendant was urgently seeking to refinance her home and had borrowed from a third party with whom she had no connection on a short-term basis. The fact that other security documents taken out with other banks, such as Westpac, invariably provide for interest at a compound interest is a factor which lays in favour of compound interest being awarded. The plaintiff argues that the commercial nature of BIGPL’s business favours compound interest.
47The defendant opposes any award of compound interest. It was submitted that the language of the interest clause was consistent with interest being charged on a simple interest basis. The defendant relied upon a decision of Einstein J in Agricultural and Rural Finance Pty Ltd v John Edward Atkinson,[5] where His Honour held that: “a contractual provision which merely prescribes interest to be payable at a particular percentage rate per annum, imposes an obligation to pay simple and not compound interest”.
[5] [2010] NSWSC 1396 [129] (“Rural Finance”)
48The defendant noted that BIGPL had charged significant fees of $20,700 for advancing the moneys lent on a short-term basis. It was put that this meant the parties would have contemplated charging simple interest given the substantial fees levied. The defendant argued that the cases relied upon by the plaintiff did not stand for a general proposition that the interest rate for non-bank lenders should be compound interest, particularly where the clause in question did not refer to rates being charged in accordance with current banking practices. The parties were not in a banker/customer relationship. No evidence was led of non-bank lending practices. Whatever the terms of the loan provided by Westpac, they do not assist with the construction of the loan agreement in this proceeding. Additionally, such terms were not known to the defendant when she entered into the transaction with BIGPL. The subsequent indebtedness to Westpac is not relevant to the interpretation of the loan agreement and the inference that interest should be compounded.
49As a matter of construction of the loan agreement, and in the light of the surrounding circumstances, I am not persuaded BIGPL was entitled to charge compound interest. The clause is consistent with interest being charged on a simple interest basis, being similar to the clause considered in Rural Finance. BIGPL is not a bank and the parties were not in a banking/customer relationship. The loan agreement makes no reference to banking interest rates. Nor was there any evidence that the defendant agreed to pay interest in accordance with current banking practices. When questioned by counsel for the plaintiff, the defendant said she did not know the difference between simple and compound interest. The terms of the Westpac loan entered into after the loan agreement cannot assist in the interpretation of the earlier document.
50Having regard to these matters, I am not persuaded that the wording used in the loan agreement can be relied upon to displace the ordinary meaning of prescribing interest on a simple basis. I find that the plaintiff is not entitled to claim interest on a compound basis.
Statutory interest
51The plaintiff accepted that there was no term in the loan agreement which entitled the lender to charge interest after the expiry date and, therefore, the lender is not entitled to contractual interest after the end date of the loan contract.[6]
[6] Plaintiff’s submissions dated 5 August 2022, [26]
52The amount due under the loan agreement on the expiry date was $20,323.56, including contractual interest assessed on a simple interest basis.[7]
[7] Defendant’s submissions dated 22 August 2022, Schedule A
53The plaintiff claims interest on the debt under s58 of the Supreme Court Act 1986, in the alternative. The plaintiff seeks damages for accrued interest at the rate set by the Penalty Interest Rates Act 1983, namely 10 per cent.[8] By contrast, the defendant argues that the statutory interest rate should not be allowed, or allowed for a reduced period or at a reduced rate. Whatever the rate is, interest should be calculated on a simple interest basis.
[8]Plaintiff’s submissions dated 5 August 2022, [50]
54The court must apply the rate fixed under s2 of the Penalty Interest Rates Act 1983 “unless good cause is shown to the contrary”.[9] The expression “good cause … to the contrary” means no more or less than good reason according to the justice of the case for allowing interest at all or, if interest is to be allowed, then not allowing interest for the whole period marked out by the section.[10]
[9]Supreme Court Act 1986, s58
[10]Clarke v Foodland Stores (1993) 2 VR 382, 393
55The defendant submits the statutory rate is the starting point and the rate of interest is at the discretion of the court. Good cause may be shown in many ways and is not limited to the evidence led by the defendant. A court may be satisfied, in all the circumstances, that it would be unjust to allow interest at the rate claimed by the creditor.
56The defendant further contends that good cause to depart from the usual rule for awarding interest applies to the circumstances in this case because:
(a) Between 4 August 2011 to 4 September 2015, the defendant was not aware that the $15,000 loan existed. On her case, the first time she became aware was on 9 September 2021.
(b) The defendant did not receive the Notice of Assignment dated 29 July 2011 which assigned the loan from BIGPL to CLA. Even if she had that notice, it did not specify a method to pay the assignor.
(c) Save for the letter of 9 September 2021, the defendant did not receive any statements of account from BIGPL, CLA or the plaintiff.
(d) BIGPL, CLA and the plaintiff have delayed demanding payment from the defendant. BIGPL made no demands. The defendant denies that any oral demands were made, and that the first demand was by way of writing on 22 November 2021, nearly 12 years after the defendant had defaulted under the loan agreement.
(e) CLA paid Barnes $10,000 for it to assign the mortgage, including principal and interest.
(f) The plaintiff acted or held himself to be a loan broker, according to the defendant’s evidence. In those circumstances, the defendant contends that, as her loan broker, the plaintiff ought to have secured the best interest rate for her.
57By reason of these matters, it is submitted that it is in the court’s discretion to not allow interest at all, or to reduce the period that the defendant is required to pay interest, or reduce the rate of statutory interest below that prescribed by the Penalty Interest Rates Act 1983.
58In Clarke v Foodland Stores,[11] the court held that the plaintiff’s delay in prosecuting its claim constituted good cause to depart from allowing the maximum rate for the whole period, and reduce the relevant period of interest.
[11](1993) 2 VR 382
59In Lai v Gong,[12] the court applied the statutory rate less 2 per cent for four years, from the time of commencement of the proceedings until final judgment. The court reduced the rate because the court rate was higher than the commercial rate of interest. The defendant notes that there is sparse evidence before the Court as to the commercial rates of lending. However, in accordance with the justice of the case, the court should exercise its discretion by:
(a) if it accepts the evidence of the defendant that she was not notified of the assignment, the court may order that no interest be awarded to the plaintiff.
(b) if the court accepts the evidence of the defendant that she was not aware the loan existed until 9 September 2021, the court may set the interest rate at 5.11 per cent or 7.11 per cent per annum on a simple interest basis from 4 August 2011 to 4 September 2015; that is, the current and default interest rates of the defendant’s Westpac home loan.
(c) follow the approach adopted in Lai and subtract 2 per cent from the maximum statutory rate and fix interest at 8 per cent per annum calculated on a simple interest rate from 4 August 2011 to 4 September 2015.
[12](1997) 8 BPR 15837
60The plaintiff says the defendant bears the onus of persuading the court that there should be a reduction in the rate or applicable time for a period of interest under s58 of the Supreme Court Act 1986. If the court finds the defendant has shown good cause to the contrary, then interest should be calculated at the penalty interest rate figure from time to time on a compound basis.
61The plaintiff argues that there is no merit in the defendant’s submission that interest should be reduced because the defendant was not given the opportunity to remedy any default. That is because it is clear the defendant was never in a position to remedy the default. The defendant was unable to pay the $15,000 loan in 2009 to BIGPL, which is why it was set up as a loan. Had BIGPL, CLA or the plaintiff enforced the loan at an earlier time, it is likely the defendant would have lost her home. Forbearance by those parties has at least enabled the benefit of the plaintiff to reside in her home for many years.
62I am not persuaded by the defendant’s submissions that I should reduce the statutory rate or the period for which the plaintiff is entitled to interest on the debt from the expiry date onwards. Although the defendant gave evidence that she was unaware that the loan existed, I have already found that she was bound by the loan agreement that she signed. Her hazy recollection of events forms no basis upon which to say that the plaintiff should be denied the usual basis for awarding interest.
63As for the telephone calls, it can be accepted that the defendant’s memory is poor. The plaintiff produced a contemporaneous email in 2012 which recorded discussions about following up repayment, albeit not referring to the defendant by name. On the whole, I would prefer the plaintiff’s evidence on this point having observed him as he appeared to have a strong recollection of the telephone discussions taking place. There is no dispute that there was no further contact between the parties from January 2012 until 2021.
64The mere fact that the plaintiff or his predecessors did not make further demands for repayment is not of itself, in my view, sufficient to deny the plaintiff statutory interest. Nor is the issue of whether the defendant received the letter of 29 July 2011 regarding the assignment.
65Overall, I was not persuaded by the various matters put on behalf of the defendant that there is good cause to depart from the usual rule relating to the award of statutory interest.
Hungerfords’ damages
66On the second day of trial, the plaintiff amended his statement of claim to include in the prayer for relief, an alternative claim for damages for loss of use of the moneys.
67In his affidavit sworn 26 July 2022, the plaintiff deposed to having held a credit card with the Commonwealth Bank of Australia (“CBA”) from August 2011. The interest under the credit card was 20.240 per cent on purchases and 21.740 per cent on cash advances. He deposed that he had $13,571.10 owing from 26 August 2011.
68The plaintiff said that from about January 2012, he had always owed the CBA anywhere between $15,000 and $30,000. As of 1 April 2022, he owed $32,902.16 to the CBA. As a result of the passing of time, he has not kept his credit card statements and was not in a position to produce them to the court. He did, however, recall that he never had a zero balance and always maintained a credit card debt to the CBA.
69The plaintiff further deposed that had the defendant paid CLA or him the debt at any time in the preceding years, he would have immediately paid that sum off his CBA credit card. As that did not occur, he would have continued to pay interest on the credit card at the rate far exceeding that under the defendant’s loan, and has been deprived of using the debt sum for his own use.
70The plaintiff and his predecessors have been kept out of their funds. The relatively modest quantum of this sum should be taken into account in assessing the evidence required in order to prove loss. It would be inefficient to spend considerable resources of the parties and the court in pleading, leading evidence and arguing a claim for damages for non-use of the funds when the funds started out only as a sum of $15,000.
71The plaintiff argues that it is not a case where the plaintiff is required to prove he would have utilised a significant sum of money to operate an alternative venture and then prove the profits most likely made on that venture. It is appropriate for the plaintiff to establish that he would have used the minor sum to pay down debt – in this case, his credit card debt.
72The defendant submitted in her closing submissions that the plaintiff’s claim for damages in accordance with the principle in Hungerfords v Walker[13] failed for three reasons.
[13](1989) 171 CLR 125; (1989) 84 ALR 119; (1989) HCA 8 (“Hungerfords’ damages”)
73The first reason was that the plaintiff had not adequately pleaded his claim for Hungerfords’ damages. The statement of claim did not plead account of factual scenario and had not identified the material facts relied upon to establish the causal link between the defendant’s breach of the loan agreement and the claimed loss of being deprived of his money.
74The defendant relied upon a passage by Bond J in Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors (No 7),[14] where his Honour cited the Full Federal Court decision in Oztech Pty Ltd v Public Trustee of Queensland (No 15)[15] in support of the following:
“The result is that where a party’s causation hypothesis depends on establishing a particular counterfactual scenario to establish the alleged causal link between breaches of contract and the loss which it is said would have eventuated if the conduct which the party impugns had not occurred, that counterfactual scenario must be pleaded and particularised in accordance with the rules of pleading. This should be done with the degree of clarity referred to in Oztech Pty Ltd v Public Trustee of Queensland. The pleading so framed must at least arguably establish a reasonable inference that the impugned conduct and the claimed loss stand to each other in the relation of cause and effect.”
[14][2019] QSC 241 at [21]
[15][2019] 269 FCR 349
75The defendant contends that the pleading did not provide any basis upon which the claim was made out by the plaintiff and no counterfactual was given. In the absence of this, the defendant is left in the invidious position of having to guess.
76The second matter relied upon was that the Deed of Assignment between BIGPL and CLA defined the debt to mean $20,813.46 inclusive of GST and interest (clause 1.1).
77BIGPL did not assign its chose of action for damages to CLA. It only assigned the debt and interest. Hungerfords’ damages are a claim for damages for the loss of use of money where the primary cause of action arose in contract or tort. Therefore, it is said that the plaintiff cannot claim Hungerfords’ damages because BIGPL did not assign those rights to CLA.
78The third matter relied upon is that if CLA did acquire BIGPL’s chose in action in damages, the plaintiff erroneously assumes that he is entitled to damages for the loss of the use of the money at a time when the debt was held by CLA. From 4 August 2009 to 24 July 2011, BIGPL was the creditor and mortgagee under the loan agreement and mortgage. On 25 July 2011, BIGPL assigned those rights to CLA who in turn assigned those rights to the plaintiff on 21 November 2019.
79By the time the plaintiff acquired the rights as assignee, the claim for interest on that debt was statute barred. Therefore, the relevant enquiries of the plaintiff as the sole director of CLA would have hypothetically been done between 25 July 2011 to 4 September 2015, being the limitation period. The plaintiff’s evidence is that from about January 2012 he, and not CLA (the owner of the debt), had always owed between $15,000 to $30,000 on his credit card. Therefore, the relevant period to assess is between January 2012 to 4 September 2015. The plaintiff has produced a one-page letter from his bank saying he had an outstanding balance of $32,902.16 as of 1 April 2022.
80The plaintiff has not produced any documents evidencing the plaintiff’s credit card debt for the relevant damages period, including what amount was owing. Nor has the plaintiff produced any evidence as to CLA’s damages during the relevant damages period of whether it suffered any loss which was reasonably foreseeable. In Hardie & Ors v Shadbolt & Ors,[16] the court refused a Hungerfords’ damages claim because the vagueness of the evidence meant that it could not make any realistic assessment of the loss. The court accepted that the respondents did suffer some opportunity loss but awarded the statutory rate of 6 per cent per annum from the respective termination date of the loan agreements until the date of payment.
[16][2004] WASCA 175
81Accordingly, the defendant submits the court should assess the plaintiff’s damages in accordance with the statutory rate, allowing for any appropriate discounts instead of allowing the Hungerfords’ damages claim.
82I am not persuaded the plaintiff proved his alternative claim for loss of use of the moneys. My reasons for rejecting this claim are as follows:
(a) the Hungerfords’ damages claim was not pleaded in the body of the amended statement of claim but only mentioned in the prayer for relief. The pleading did not set out the material facts relied upon or any causal connection between the breach and loss now claimed and was therefore defective;
(b) the evidence supporting such a claim was flimsy to say the least. No credit cards statements were produced which would have shown the level of indebtedness from time to time, the amounts of interest charged, and how the repayments due to be made by the plaintiff would have reduced or extinguished the credit card debt. There was insufficient evidence led such that the court was not in a position to make any realistic assessment of damages under this head.
(c) the plaintiff cannot claim any loss during the time that BIGPL and CLA held the debt such that the measure of his personal loss was not adequately proved.
Limitations defence
83The defendant submits the plaintiff cannot claim accrued interest after 4 September 2015 because it is statute barred.
84The amended defence pleads that any interest accrued beyond the expiry date of the loan contract is subject to the time limits stipulated by s5(7) Limitation of Actions Act 1958.
85The repayment term of the loan agreement provides that “interest repayments are due monthly in arrears on drawdown of the loan funds”. As the loan was advanced on 4 August 2009, the defendant breached the loan agreement on 4 September 2009. The plaintiff cannot recover any arrears of interest in respect of a sum of money after the expiration of six years after they became due. The relevant expiry date is 4 September 2015.
86The plaintiff, as mortgagee, has 15 years to recover possession of the land from the defendant.[17] The longer limitation period of 15 years to recover possession of the land does not extend the shorter limitation period of six years for arrears of interest.
[17]Limitation of Actions Act 1958, ss 3(5), 11(1). Section 3(5) provides that a reference to a right to recover land includes a right to enter into possession of the land.
87The defendant referred to Barnes v Glenton,[18] where a creditor brought an action to recover money loaned to the defendants, who were trustees under a will and who had transferred mortgages to the plaintiff. A six-year time limit applied to the contract debt, but a 12-year time limit applied to recover the land. Lord Chief Romer explained that:
“… [the relevant limitation acts] were not intended to take away from debtors any rights, or give any additional rights to creditors. On the contrary, the intention was to give further rights to debtors to oppose the claims of creditors after the lapse of a certain time…
The effect of such combination [of the different time periods] may be stated briefly thus: No action to enforce a simple contract debt, whether charged on the land or not so charged, shall be brought after 6 years, unless interest has been paid or an acknowledgment given, and as to any debt charged on land, even if the debt be a speciality debt, no action shall be brought for a remedy against the land after 12 years unless interest or an acknowledgment has been given’ (emphasis in original).”
[18][1899] 1 QB 885. See also discussion in Dal Pont, Law of Limitation (LexisNexis Australia, 2nd ed, 2021) [9.11]
88The reasoning in Barnes v Glenton was endorsed by the High Court in Brisbane City Council v Amos, where Kiefel CJ and Elderman J held that:[19]
“The effect of the decision of Barnes v Glenton was…to confirm that in personal claims to recover a sum secured by mortgage or other charge there could be overlapping time periods, but any longer limitation period would not extend the shorter limitation period.”
[19](2019) 372 ALR 366; [2019] HCA 27 at [22]
89It was argued by the plaintiff that the decision in Amos was distinguishable, because there the council was seeking to recover overdue rates and charges by which virtue of an enactment had become a charge upon the respondent’s land. The underlying action was for recovery of a debt which had become a charge on land, whereas this proceeding is a claim for possession of land under a mortgage. The claim was not put as a contractual claim under the loan agreement. The debt owed is incidental and merely serves to quantify the amount which must be paid by the defendant to enable her to secure a discharge of the registered mortgage.
90The plaintiff relied upon a decision of Derham AsJ in Hall v Hall.[20] In that case, a mortgagor contended the mortgagee could not recover interest outstanding for more than six years. His Honour held that the Act provided a defence to a claim under contract but did not extinguish the underlying debt or, put another way, the Act extinguishes the remedy but not the right. The mortgage, therefore, was capable of securing the underlying debt. The mortgagor was then required to pay the debt regardless of the date upon which it accrued in order to obtain a discharge of the mortgage.
[20](2018) VSC 131
91His Honour went on to say:
“Thus the most important feature of the general law applicable is that to obtain the discharge of the registered mortgage, just as to obtain redemption of a mortgage over general law land (transfer of the legal title in the name of the mortgagee back to the mortgagor) it is necessary for the mortgagor to pay the principal and all the interest that has accrued due in accordance with the terms of the relevant mortgage. In this case, the Mortgage is collateral to the Loan Agreement and cl 9 of that Agreement, and the general law, govern the rights of Thomas Hall and his wife, as mortgagors, to demand a discharge of the Mortgage. The legal right to obtain the discharge of mortgage of land registered under the TLA requires a payment of the amount secured by the mortgage. Because under s 5(7) of the LAA the right to interest is not extinguished, merely the remedy in an action for the recovery of interest is barred, it follows that in order to obtain a discharge of the Mortgage, Thomas Hall needs to tender the whole of the sum due in respect of the principal sum and all interest payable under the Loan Agreement.”
92Consequently, the plaintiff says the interest payable under the loan agreement has no relationship with the requirements of the mortgage. In order to discharge the mortgage, the mortgagor is required to pay the principal and all the interest that has accrued in accordance with the terms of the relevant mortgage.
93In answer to this, the defendant noted that the circumstances in this case were quite different. The mortgage itself does not include any terms imposing interest. There was no memorandum of common provisions, which is accepted by both parties. The mortgage refers to “Annexure Page A1”, but there was no annexure attached. There is no definition of what the moneys secured are. Nor is there any reference to what moneys are said to be secured by the covenant to pay.
94The plaintiff claims he is entitled to interest under the mortgage at the rate set out in the loan agreement. This is disputed by the defendant. It said that applying the contractual interest rate beyond the term of the contract goes against the express words of the contract. It is nonsensical to have a contract fix the term and interest of the loan for two years but to interpret the mortgage, which has no interest clause, as permitting the plaintiff to charge interest for an indefinite term.
95The defendant contends that the plaintiff is effectively asking the court to imply a term into the mortgage. The court cannot imply such a term because it is unnecessary to do so to give the loan agreement business efficacy. To permit the plaintiff to claim contractual interest beyond the expiry date goes against the principle in Cook v Fowler.[21] The fact that the loan is secured by a mortgage does not alter the application of that principle.
[21](1874) LR 7 HL 27
96The defendant says that the interest is not captured by the provisions in the mortgage and, as such, the provision is different to the position that was applicable in Hall v Hall. The mortgage does not secure any of the three types of interest now claimed by the plaintiff, and the mortgage. For example, it does not use the expression “all moneys clause”, which generally has a broad definition.
97In this case the mortgage is silent as to the ability to claim interest; there is no definition of what the moneys secured are which might encompass interest, and there is no annexure attached or memorandum of common provisions. This has the effect that the case is distinguishable from Hall v Hall. Therefore, I reject the submission made by the plaintiff that, independently of the loan agreement, the mortgage gives the plaintiff an entitlement to charge interest which extends beyond the date of the statute barred debt under the loan agreement.
98The plaintiff’s barred cause of action will revive if the defendant has made a part payment towards the debt, or provided written acknowledgement of the debt.[22]
[22]Limitation of Actions Act 1958 ss 24-26
99The defendant did not make any payment towards the debt to either Martyn Barnes, BIGPL, CLA or the plaintiff.[23] The defendant has not sent a written and signed acknowledgement of the debt to BIGPL, CLA or the plaintiff. The first time she became aware of the debt was on 9 September 2021. Given these facts, the barred cause of action was not revived after 4 September 2015.
[23]Notice to Adduce Hearsay Evidence of Martyn Barnes dated 11 July 2022; Affidavit of Stephen O’Neill sworn 4 July 2022 [25]
100In the circumstances, I am satisfied that any claim for interest on the debt claimed under the loan agreement became statue barred after 4 September 2015.
Possession order
101The defendant seeks an order that if the court finds the defendant is indebted to the plaintiff, and that the plaintiff is entitled to an order for possession, there should be a stay of 60 days.
102Staying the possession order for 60 days will enable the defendant to pay the plaintiff’s damages. Section 77 of the Transfer of Land Act 1958 requires a mortgagee to give a mortgagor at least one month to remedy a default specified in a mortgagee’s notice. It is submitted that a 60-day stay aligns with the objective of the Act and affords justice between the parties.
103The plaintiff opposes the granting of a stay for 60 days. I am, however, persuaded that the stay sought should be granted, as it will give the defendant an opportunity to raise funds to pay out the debt owed promptly, which is in the interests of both parties.
Costs
104I have had the benefit of extensive written submissions by both parties on the issue of costs. There was no real dispute that costs should follow the event but each party made competing submissions about how costs should be awarded.
Scale of costs
105The defendant contends the plaintiff is only entitled to costs to be assessed in accordance with the Magistrates’ Court scale.[24] If the defendant’s submissions are accepted, the plaintiff’s claim for damages will be reduced to $20,323.56 plus statutory interest (to be calculated on a rate or period in accordance with the justice of the case). As that amount (excluding costs) will be less than one half of the jurisdictional limit of the Magistrates’ Court in a civil proceeding,[25] the defendant submits that the plaintiff is only entitled to costs he would be entitled to in the Magistrates’ Court.[26] The court ought to then deduct an amount equal to the additional costs incurred by the defendant by reason of the proceeding having been brought in the County Court instead of the Magistrates’ Court.[27] This should include all costs provided by the defendant’s legal practitioners on a pro bono basis to prepare closing written submissions.[28]
[24]Appendix A to the Magistrates’ Court General Civil Procedure Rules 2020
[25]Magistrates’ Court Act 1989 ss 3, 100. Jurisdictional limit is defined as $100,000
[26]County Court Civil Procedure Rules 2018 r 63A.24.
[27]County Court Civil Procedure Rules 2018 r 63A.24(1)
[28]County Court Civil Procedure Rules 2018 rr 63A.35.1, 63A.35.3
106The object of rule 63A.24 of the County Court Civil Procedure Rules 2018 is to protect a defendant against the unnecessary expense of higher costs in a court which is not appropriate for the case.[29] In substance, this provision says that where, in a proceeding for debt or damages the plaintiff recovers an amount not exceeding $50,000 (being half the jurisdictional limit of the Magistrates’ Court in civil proceedings), the plaintiff shall, unless the court otherwise orders, be entitled only to the costs which it would have been entitled to had it brought the proceeding in the Magistrates’ Court.
[29]O’Doherty v McMahon [1971] VR 625, 628; cited in Bogdanov; Atkins v Drummond (No 3) [2020] VSC 425, [43] when discussing the analogous rule in the Supreme Court (General Civil Procedure) Rules 2015, r 63.24
107Courts have identified various factors which can be taken into account in determining how to exercise the discretion about costs in this context. They include:[30]
· the amount claimed and the reasons for this;
· the amount actually recovered and the reasons for this;
· the difficulty or otherwise of assessing the likely damages awarded;
· the complexity or otherwise of the case, factually and/or legally;
· the nature of the proceedings in question and how this impacts, if at all, upon the need to proceed in the higher or specialist court; and
· the conduct and attitude of the parties to the litigation.
[30]Dal Pont, Law of Costs, [12.15]. See also Mortgage Finance Options v UniQ Finance Australia (No 2) [2020] VCC 555 at [25]
108Rule 63A.25 contains a modification where a judgment relates to “any amount in dispute in the proceeding or the value of any property” which exceeds one-half of the jurisdiction of the Magistrates' Court in a civil proceeding, being $50,000. The fact that the plaintiff seeks to recover possession of the defendant’s home does not displace the costs consequences of issuing proceedings in the wrong court.
109In Valimi Pty Ltd v Maniotis,[31] Nettle J considered the application of the equivalent Supreme Court of Victoria rule:
“In Lesiac v Foggenberger, Hedigan J held that the ‘value of the property to which the relief relates’ refers to the value of the property the subject of the proceeding and not to the value of the proprietary relief that may be granted. With respect, I do not think that can be doubted.
I also think it plain that the expression ‘any amount in dispute’ is to be construed as referring to the amount in dispute as alleged in the pleadings and not the amount in which relief may be granted.”
[31][2003] VSC 357 [34]-[35] (citations omitted)
110The possession order sought by the plaintiff is a form of proprietary relief. The value of the defendant’s home is not the subject of the proceeding.
111The defendant says the case of Decorrado[32] is instructive. In Decorrado, the parties entered into two loan agreements which were secured by a mortgage over a property. The court construed the interest clause in the loan agreements on a simple interest basis. The plaintiff’s damages were reduced to a ”small magnitude”.[33] Costs were ordered to be assessed on the scale appropriate to the Magistrates’ Court.[34] The plaintiff’s claim for possession of a property was irrelevant to that task.
[32]Decorrado v Manoukian [2009] VSC 451
[33]Ibid [87]
[34]Ibid [86], [106]
112I am satisfied this is a case where the court should otherwise order that the costs be paid on the County Court scale, even though the amount to be awarded is less than half the jurisdictional limit of the Magistrates’ Court. The matter was not a straightforward debt claim as is readily demonstrated by the extensive submissions filed. The question of how interest should be calculated raised several issues of legal complexity. It was by no means apparent that the plaintiff would recover less than $50,000. Further, I accept the plaintiff’s submission that had the limitations defence been raised earlier, then he could have considered transferring the matter to the Magistrates’ Court, which is a relevant factor to take into account when exercising my discretion. In my view, the interests of justice are best served by the plaintiff recovering his costs from the defendant on the County Court scale.
113The defendant also argues that the plaintiff’s costs associated with his application for expedition ought to be borne by him because those costs arise from a circumstance that is personal to him. I am not persuaded that there should be any costs order made against the plaintiff for the application of expedition of the hearing of the trial in circumstances where this application was supported by the defendant. The orders made on 12 April 2022 were made on the papers and neither party appeared. The orders made also included a number of timetabling orders relating to preparation for trial which were necessary steps. In those circumstances, there is no reason to visit a costs order against the plaintiff for seeking expedition, amongst other orders made on the papers.
114Nor am I persuaded there should be any separate order in respect of any costs supposedly thrown away with the Hungerfords’ damages claim. Such an order was sought if it was found that the County Court was the wrong forum. I have found that it was an appropriate forum. In any event, this was a minor issue in the scheme of things and did not prolong the trial.
115Finally, the defendant is not entitled to an order as is sought in paragraph 42(d) above. This order sought costs, including costs of pro bono counsel, for the closing submissions. It was predicated on a finding that the matter should not have been issued in this court. As I have ruled against the defendant on this, the basis for seeking costs thrown away, including pro bono counsel’s fees, falls away
Costs thrown away sought by the plaintiff
116The plaintiff submits the defendant should pay his costs, on a standard basis, being costs thrown away:
(a) by reason of the adjournment of the trial listed for 25 July 2022; and
(b) in relation to the proposed amended defences delivered on behalf of the defendant prior to trial, including time spent in preparation to be able to respond at trial to the issues raised in those proposed amended defences.
117The hearing on 25 July was adjourned to 27 July on the court’s own motion by order made on 20 July 2022. The matter had been listed for a case management conference on 18 July 2022. During that conference, the defendant indicated that she may seek leave to amend her defence. After the conference, the defendant wrote to the court advising that she had briefed a barrister and solicitor, and requested that she be permitted to amend her defence. It was as a consequence of those matters that the court determined to adjourn the hearing of the trial from 25 July to 27 July 2022. Other orders were made regarding the filing and serving of a statement of issues and the procedure for the defendant to file a draft proposed amended defence.
118It is regrettable that these matters were only attended to at the last minute. The delay that ensued of two days might have been avoided had these matters been attended to earlier. I am not persuaded, however, that it is in the interests of justice that the plaintiff should have an order for any costs thrown away by reason of the orders made on 20 July 2022.
119The various incantations of the defence drawn by the defendant’s former counsel were unintelligible and failed to comply with the rudimentary elements of pleading. The latest version provided shortly before trial suffered from the same vice and I refused leave to the defendant to file that document. I accept that the plaintiff was put to unnecessary time and expense in having to review and consider the various draft amended defences as part of the preparation for trial. In the circumstances, I consider it is reasonable that the plaintiff should have his costs thrown away by reason of the multiple proposed and defective defences served before the trial and will so order.
Conclusion
120I am satisfied that the plaintiff has established his claim for the principal amount in the sum of $15,000. I am also satisfied that he is entitled to contractual interest under the loan agreement on a simple interest basis up to 4 August 2011, which results in a total amount payable of $20,323.56. I will order judgment for the plaintiff in this amount.
121I will award statutory interest pursuant to s58 of the Supreme Court Act 1986 at the rate of 10 percent per annum calculated from 4 August 2011 to 4 September 2015 fixed in the sum of $28,631.16. I do so on the basis that I am satisfied that the claim for interest under the loan agreement became statute barred after 4 September 2015 under s5(7) of the Limitation of Actions Act.
122I will further order that there be judgment for the plaintiff for possession of the property to be stayed for a period of 60 days.
123As for costs, I will order the defendant pay the plaintiff’s costs of and incidental to the proceeding, on the standard basis, to be taxed in default of agreement.
124I will also order that the defendant pay the plaintiff’s costs, thrown away, on a standard basis, in relation to the proposed amended defences delivered on behalf of the defendant prior to trial, including time spent in preparation to be able to respond at trial to the issues raised in those proposed amended defences.
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Certificate
I certify that these 31 pages are a true copy of the Reasons for Judgment of Her Honour Judge A Ryan delivered on 19 October 2022.
Dated: 19 October 2022
Associate to Her Honour Judge A Ryan
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