Sainuddin v Brady Flinders Pty Ltd (No. 2)

[2012] VCC 702

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-10-00976

NANCY SAINUDDIN	Plaintiff
v
BRADY FLINDERS PTY LTD (ACN 085 343 488)	Defendant

---

JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2012
DATE OF JUDGMENT:	31 May 2012 (Revised)
CASE MAY BE CITED AS:	Sainuddin v Brady Flinders Pty Ltd (No. 2)
MEDIUM NEUTRAL CITATION:	[2012] VCC 702

REASONS FOR JUDGMENT
---

INTEREST – period in which interest payable – whether demand for debt or sum certain - good cause why shorter period of interest should be allowed -Supreme Court Act 1986 s 58.

COSTS – Magistrates Court proceeding transferred to County Court – additional claims unsuccessful – Costs on Magistrates Court scale until transfer and thereafter on County Court scale.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self represented
For the First Defendant	Mr A Schlicht	Corrs Chambers Westgarth

HIS HONOUR:

1       On Tuesday, I  stated that I would make orders in favour of the plaintiff against the first defendant for the sum of $88,600.  The question of interest and costs remained for determination. 

INTEREST

2 The plaintiff claimed interest under statute. The pleading sought relief including the sum of $88,600. I consider that is a debt or sum certain under s.58 of the Supreme Court Act 1986. Therefore, unless good cause is shown to the contrary, interest at the rate set out under the Penalty Interest Rates Act 1983 is payable on the judgment sum from the time when demand of payment was made. I consider that Mr Young’s letter of 28 March 2006 was a demand within the meaning of s.58[1]. 

[1]Civil Procedure Victoria Vol 2 p 6931 [670.27]; A J Lucas Drilling Pty Ltd v McConnell Dowell Constructors(Aust) Pty Ltd [2009] VSCA 310 at [179]

3       The question then is whether good cause has been shown to the contrary.  I consider it has.  I consider the delay on the part of the plaintiff in commencing  the proceeding after that demand, is a good cause for the Court awarding interest for a shorter period than the statutory period.  There has been extensive delay.  The proceeding was not commenced until 16 March 2008 in the Magistrates’ Court.  Many of the reasons contributing to that delay were because of issues the plaintiff had with her solicitors, but those issues are not in large part  the responsibility of the first defendant. 

4       I consider that the Court should take a broad approach to both this matter and the other matters I have to deal with.  I consider that a period up until 31 July 2006 was a reasonable period in which the plaintiff should have commenced proceedings. I take into account that the proceeding was to be commenced in the Magistrates’ Court and at that point was a proceeding seeking only the return of the deposit.  I appreciate the plaintiff had difficulties in obtaining a copy of the contract and that may have been a reason for her delay in  commencing proceedings to be issued, but she had been seeking a copy of the contract since August 2003. The time had come, soon after Mr Davidson’s letter of reply of 13 April 2006, to commence proceedings. Delay after 31 July 2006 in commencing proceedings was unreasonable.

5       As I have stated, the proceeding was commenced on 16 March 2008 in the Magistrates’ Court. An amendment  to pleadings occurred in November 2008 which introduced claims for commission and for damages. The proceeding was then set down for hearing on 20 April 2009 and it appears, that the proceeding could have been heard then.  The proceeding was adjourned to a date to be fixed because Ms Sainuddin’s solicitors, at that time, withdrew.

6       New solicitors were appointed and proceedings were ultimately transferred to the County Court by consent, in February 2010.  This transfer occurred because Ms Sainuddin’s claims now exceeded the $100,000 civil jurisdiction of the Magistrates’ Court.  The case then took until 24 November 2011 to be listed in this Court.  There were at least two adjournments of trial dates in this Court, which seem to have been the responsibility of the plaintiff, or her solicitors, or both. 

7       I have to decide whether good cause has been shown why Ms Sainuddin should not recover interest for all of the period during which proceedings in the Magistrates’ Court and the County Court have been on foot.  I state the issue in that manner because I have previously decided that the proceeding should have been commenced by 31 July 2006.  I consider that good cause has been shown why Ms Sainuddin should not be awarded interest for the whole of the period during which proceedings were on foot.

8       Brady Flinders submits that the period for which interest should be awarded  should be no more than the period up to April 2009 or, perhaps some modest period after that, when the proceeding could have been heard in the Magistrates’ Court.  I consider that a period greater than that should be allowed.  It is not unknown for interlocutory steps and, indeed change of solicitors, to delay a proceeding or, for further delays to occur while the Court decides the matter, in a case where a reserved decision is required.  I take into account that proceedings are sometimes not reached on the first occasion when they are listed.  I take into account that, if the proceeding had been originally instituted in the County Court, it is likely to have been heard within eighteen months to two years.

9        I consider I should take a broad approach to the period for which interest should be allowed. In all the circumstances I consider that a period between 16 March 2008 and 31 December 2009 should be allowed.

COSTS

10      I turn then to the question of costs.  Brady Flinders does not dispute that the appropriate basis of taxation during the period that the proceeding was on foot in the Magistrates’ Court is the Scale of that Court, but rather submits that the whole of the costs of the proceeding should be taxed on that basis.  Ms Sainuddin has handed the Court a document seeking a large sum of costs in excess of $370,000, which seems to bear no close connection with the Scales of either this Court or the Magistrates’ Court.  But,  that is a matter for another day.

11      I consider that the appropriate order is that the costs of the proceeding be taxed on the highest Magistrates’ Court Scale while the proceeding was in that Court and then be taxed on Scale D in this Court, and thereafter taxed on the new scale of costs, which commenced on 1 September 2011. 

12      I take into account that the claim, as a result of the amendment in November 2008, exceeded the $100,000 jurisdiction of the Magistrates’ Court.  Those additional claims failed in this Court, but I do not consider that a decisive consideration.  The additional claims were reasonably put and were, in part, alternative claims. If they were to be  determined,  the proceeding did require to be transferred to this Court. In addition, the transfer was by consent. 

13       There are issues about whether Ms Sainuddin would be able to attend any such taxation. I propose to order that a taxation on the Scales I have mentioned occur, but reserve liberty to Ms Sainuddin, on notice to, to Brady Flinders, to apply to this Court  to tax the costs. I will record in the Order the circumstances in which that might occur.

14      I will hear the parties about the interest calculations.

- - -