Supreme Court
New South Wales
Medium Neutral Citation: Polon v Dorian (No 2) [2014] NSWSC 681 Hearing dates: 20 May 2014 Decision date: 28 May 2014 Jurisdiction: Common Law Before: Hall J Decision: (1) Judgment entered in favour of the plaintiff against the second and fourth defendants in the amount of $585,176.99
(2) Matter to be re-listed to determine the question of costs
Catchwords: COSTS - pre-judgment interest Legislation Cited: Civil Procedure Act 2005 Category: Consequential orders Parties: Hazel Beverley Polon (Plaintiff)
David Dorian (First Defendant)
Renae Fowler (Second Defendant)
Tiernan & Associates Lawyers Pty Ltd (Fourth Defendant)Representation: Counsel:
C J Birch SC (Plaintiff)
No appearance (First Defendant)
D Priestley (Second and Fourth Defendants)
Solicitors:
TressCox Lawyers (Plaintiff)
No appearance (First Defendant)
HWL Ebsworth Lawyers (Second and Fourth Defendants)
File Number(s): 2010/361702
Judgment
On 13 May 2014 I delivered judgment in these proceedings: Polon v Dorian [2014] NSWSC 571.
In the judgment I determined that the plaintiff was entitled to pre-judgment interest upon the bases set out in paragraphs [910] and [911], in accordance with s 100 of the Civil Procedure Act 2005.
I granted leave to the parties to be heard in relation to the question of pre-judgment interest and costs. This judgment is concerned with the first of those matters, namely, pre-judgment interest.
Written submissions on behalf of the parties dealing with the above matters were lodged with my Associate. These were supplemented by oral submissions on 20 May 2014.
On that date I stood the proceedings over to today for the purposes of making final orders.
On the question of pre-judgment interest, short submissions were made in respect of the date from which such interest should be calculated. Mr Priestley, on behalf of the second and fourth defendants, submitted that interest should be calculated from 19 December 2006, that is, the day after the plaintiff received the last interest payment from the bridging finance scheme. Dr Birch SC, on behalf of the plaintiff, made submissions supporting a calculation from 1 December 2006. It is unnecessary here to set out the oral submissions on that aspect, which are in the transcript of 20 May 2014.
I have determined that pre-judgment interest should be calculated from the day after the plaintiff received the last interest payment under the bridging finance scheme, notwithstanding the matters to which Dr Birch referred, including, in particular, that that last payment received by the plaintiff was in the amount of $5,000, and therefore represented only a part payment of her contractual entitlement.
Accordingly, pre-judgment interest on the amount of $357,000, as specified in paragraph [904](iii) of the judgment delivered on 13 May 2014, calculated from 19 December 2006 to today, 28 May 2014, is the amount of $228,176.99. I set out below a table illustrating this calculation:
Date from
Date to
Judgment Sum
Days in Period
Rate per annum
Rate per day
Interest accrued
19/12/2006
31/12/2006
$357,000.00
13
8.58%
$83.92
$1,090.95
1/01/2007
30/06/2007
$357,000.00
181
8.58%
$83.92
$15,189.42
1/07/2007
31/12/2007
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2008
30/06/2008
$357,000.00
182
8.58%
$83.92
$15,273.34
1/07/2008
31/12/2008
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2009
30/06/2009
$357,000.00
181
8.58%
$83.92
$15,189.42
1/07/2009
31/12/2009
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2010
30/06/2010
$357,000.00
181
8.58%
$83.92
$15,189.42
1/07/2010
31/12/2010
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2011
30/06/2011
$357,000.00
181
8.58%
$83.92
$15,189.42
1/07/2011
31/12/2011
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2012
30/06/2012
$357,000.00
182
8.58%
$83.92
$15,273.34
1/07/2012
31/12/2012
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2013
30/06/2013
$357,000.00
181
8.58%
$83.92
$15,189.42
1/07/2013
31/12/2013
$357,000.00
184
8.58%
$83.92
$15,441.18
1/01/2014
28/05/2014
$357,000.00
149
8.58%
$83.92
$12,504.00
TOTAL:
$228,176.99
I enter judgment in favour of the plaintiff against the second and fourth defendants in the amount of $585,176.99 on the above basis set out in paragraph [8] and in accordance with the calculations therein set out.
I propose to re-list the matter next week for the purpose of making final orders on the question of costs. I will give directions in that respect.
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- AGLC
- Polon v Dorian (No 2) [2014] NSWSC 681
- Case
- [2014] NSWSC 681
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the correct date from which pre-judgment interest should accrue. This required a careful analysis of the relevant legislation and case law to determine when the cause of action arose and whether any statutory provisions or judicial decisions provided guidance on the matter. The court needed to balance the principles of fairness and the statutory requirements in making its decision.
The court found that the pre-judgment interest should be calculated from the date of the initial proceedings, as this was the most equitable approach in the circumstances. The judge considered the relevant statutory provisions and the principles of fairness and justice. The court held that the applicants were not entitled to the later commencement date they sought, as this would have been inequitable and contrary to the statutory framework. The court also noted that the legislative intent was to provide a remedy for the loss of the use of money, and that the earlier date provided a more accurate reflection of this loss.
The final orders of the court reflected its decision, confirming that the pre-judgment interest would be calculated from the date of the initial proceedings. This outcome ensured that the respondents received a fair and just remedy, in line with the statutory provisions and the principles of equity.
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
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Ratio Decidendi
Legal Principle Established
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