CITATION: Ostrovsky v Burton [2009] NSWSC 1035 HEARING DATE(S): 7 July 2009
JUDGMENT DATE :
1 October 2009JURISDICTION: Equity JUDGMENT OF: Slattery J at 1 DECISION: Judgment for the plaintiff in the sum of $498,656.74. CATCHWORDS: INTEREST - where equitable relief or fiduciary relationship - calculation of interest up to judgment LEGISLATION CITED: Civil Procedure Act 2005 CATEGORY: Consequential orders CASES CITED: Hexiva v Lederer (No 2) [2007] NSWSC 49 PARTIES: Plaintiff: Alex Ostrovsky
First Defendant: Lindsay Keith Burton
Second Defendant: Construction Industry Advisory Services Pty LtdFILE NUMBER(S): SC 4359/98 COUNSEL: Plaintiff: Ms N Obrart
Defendants: No appearanceSOLICITORS: Plaintiff: Kent Attorneys
Defendants: No appearance
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
SLATTERY J
THURSDAY 1 OCTOBER 2009
4359/98 ALEX OSTROVSKY v LINDSAY KEITH BURTON & CONSTRUCTION INDUSTRY ADVISORY SERVICES PTY LTD
JUDGMENT
1 HIS HONOUR: I gave judgment in these proceedings on 7 July 2009. At that time two matters were left outstanding. The first was that the Court sought information as to whether Mr Williams, the receiver had been paid. On that question Ms Obrart, counsel for the plaintiff has since informed the Court that Mr Williams has been paid by the plaintiff.
2 The second question was for the Court to be provided with the calculation of interest to compute the final sum for the entry of judgment. In my judgment of 7 July 2009 at [44] I found that the plaintiff was entitled to interest on half the value of the subject property, namely $250,000, from 28 July 1999 up to the date of judgment. The prescribed rates of interest under Schedule 5 of the UCPR will ordinarily be allowed under s 100 of the Civil Procedure Act 2005 without the necessity for calling specific evidence: Hexiva v Lederer (No 2) [2007] NSWSC 49. Ms Obrart has provided to the Court a letter dated 30 September 2009 from Rosenfeld Kant & Co Chartered Accountants, which shows that interest from that date up to today based on Schedule 5 rates of interest is $242,868.74. It is not strictly necessary for the letter from Rosenfeld Kant & Co to be tendered as the calculations within it are mathematical logic, not fact. However, the calculation is set out in the next paragraph.
3 The prescribed rate of interest up to judgment under Schedule 5 UCPR between 28 July 1999 and 6 March 2009 varied between 9% and 11%. Between 6 March 2009 and 30 September 2009 the rate was 9%. The Rosenfeld Kant & Co interest calculation on $250,000 for the period 28 July 1999 to 30 September 2009 is set out in their table which follows:
From
To
Days
Rate$ 250,000.00
4 In paragraph [57] of the principal judgment I record that I was prepared to enter judgment for the $250,000 half share in the subject property, the interest on that sum from 28 July 1999 up to the date of judgment, plus the receiver’s fees of $5,788. At the time of the principal judgment it was uncertain whether some of the interest claimed would be waived. The plaintiff does claim full interest up to judgment. The final calculation of the judgment sum therefore is:
| (i) Half Share of Subject Property | $250,000.00 |
| (ii) Interest from 28 July 1999 to 30 September 2009 | $242,868.74 |
| (iii) Mr Williams’ fees as receiver | $5,788.00 |
| $498,656.74 |
5 Accordingly there will be judgment for the plaintiff in the sum of $498,656.74.
6 I have already made orders in the principal judgment at [56] that the defendant pay the plaintiff’s costs of these proceedings on an indemnity basis from 27 August 2007. That costs order extends to costs incurred up to today.
- AGLC
- Ostrovsky v Burton [2009] NSWSC 1035
- Case
- [2009] NSWSC 1035
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the interest should be calculated at a fixed rate, a floating rate tied to market conditions, or some other method. The plaintiff argued for a fixed rate based on the equitable nature of the claim, while the defendant contended for a floating rate to reflect the changing economic environment. The court considered precedents and statutory provisions, including the applicable interest rates under the relevant statutes and case law concerning equitable interest.
The court found that the nature of the equitable relief or fiduciary relationship justified the application of a fixed rate of interest. The court held that the fixed rate should be determined by reference to the prevailing market rates at the time the debt was incurred, adjusted for inflation to maintain its real value. This approach balanced the need for fair compensation with the practicalities of enforcing equitable remedies. The court further ruled that interest should accrue from the date the debt was due until the date of judgment, without any reduction for interim payments or offsets.
The final orders of the court mandated that the defendant pay the principal amount of the debt along with interest calculated at the specified fixed rate from the date the debt was due until the date of judgment. The court also provided detailed guidelines for the calculation of the interest, ensuring clarity and consistency in future applications of the ruling.
Orders
Orders of the court
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Background
Background to the litigation
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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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