Prospa Advance Pty Ltd v Barnard (No.2)

[2022] NSWDC 84

District Court

New South Wales

Medium Neutral Citation:

Prospa Advance Pty Ltd v Barnard (No.2) [2022] NSWDC 84

Hearing dates:

On the papers

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph 8

Catchwords:

PRACTICE AND PROCEDURE – orders for interest and costs – whether costs should be paid in accordance with contract

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 98, 100

Uniform Civil Procedure Rules 2005 (NSW) r 42.1, 42.2

Cases Cited:

Maher v Network Finance Ltd (1986) 4 NSWLR 694

Prospa Advance Pty Ltd v Barnard [2022] NSWDC 65

Texts Cited:

Nil

Category:

Costs

Parties:

Prospa Advance Pty Ltd (plaintiff)
Mr S Barnard (defendant)

Representation:

Counsel:
Mr R Freeman for the plaintiff

Solicitors:
Sphere Legal for the plaintiff
Mr Barnard, in person

File Number(s):

2019/341045

Publication restriction:

Nil

Judgment

1. I delivered reasons for judgment in this matter on 18 March 2022^[1] . I found for the plaintiff in its claim to enforce a guarantee for the principal debt in the sum of $119,861.86. The matter was stood over to allow short minutes to be brought in. The remaining controversy concerned the issues of interest and costs flowing from the Court’s determination in that earlier judgment. The parties were given time to confer on these issues and, in the event that no agreement materialised, to supply the Court with additional submissions in respect to these issues.

   1. Prospa Advance Pty Ltd v Barnard [2022] NSWDC 65

2. No agreement has materialised on these remaining questions. The plaintiff supplied short written submissions. The defendant did not.

Interest

3. The plaintiff abandons a claim of interest on the debt based upon what was provided for in the contract. Instead, it claims interest in accordance with s 100 of the Civil Procedure Act 2005 (NSW). It quantifies the interest on the principal debt as being $12,657.25 from 16 October 2019 to 17 March 2022.

4. That quantification, prima facie, appears far more advantageous to the defendant than if the interest was calculated in accordance with the contractual provision. In circumstances where the defendant has not put forward any contrary position, despite being afforded the opportunity to do so, I make allowance for interest according to the plaintiff’s calculation.

Costs

5. The plaintiff submits, in accordance with the usual rule^[2] , that costs follow the event. Nothing has been suggested by the defendant which would suggest that the usual rule would not apply.

   2. Rule 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)

6. The plaintiff next proposes that costs be payable on an indemnity basis in accordance with cll 12.3 and 15.1(d) of the Loan Agreement. Those provisions, in combination, conferred an entitlement on the creditor, relevantly, to recover its legal costs on an indemnity basis in the event of a default. This would be disadvantageous to the defendant set against the ordinary basis^[3] upon which costs would be recoverable if a costs order was made under s 98 of the Civil Procedure Act 2005 (NSW).

   3. Rule 42.2 of the UCPR

7. It is well-recognised that a party may be entitled to costs based upon a prior agreement rather than through the imposition of an ‘independent obligation’ imposed by the Court under the Civil Procedure Act ^[4] . However, in this case, the plaintiff did not specifically seek an order in its prayers for relief that costs be payable on an indemnity basis in accordance with the contractual provision. Nor was such claim conveyed, clearly or at all, to the defendant, a self-represented litigant. Costs should be payable on the ordinary basis.

   4. Maher v Network Finance Ltd (1986) 4 NSWLR 694 at 697-8

Final orders

8. The Court orders:

1. Judgment for the plaintiff for the sum of $119,861.86.

2. The defendant is to pay pre-judgment interest in the sum of $12,657.25.

3. The defendant is to pay the plaintiff’s costs on the ordinary basis as agreed or assessed.

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Endnotes