MR GARLING: If your Honours please. This application, we submit, raises three central questions, perhaps not in the order in which we have put them in writing. May I enunciate them this way. The first is whether, on an award of aggravated or exemplary damages, prejudgment interest is payable. In our respectful submission, given the nature of exemplary damages, namely, damages for the punishment of a tortfeasor, it is inappropriate to award interest, interest being in effect a head of compensatory damages. The punishment is determined at the time the proceedings are heard and judgment is entered and it is inappropriate to calculate back the number of years since the tort occurred and add interest to it.

TOOHEY J: But if you were trying to get a grant of special leave to appeal, it is not a very likely starter, is it?

MR GARLING: It is for this reason, your Honour, that this decision of the Full Court of the Federal Court, albeit the question of interest is small in monetary terms, is a decision which is contrary to what the Court of Appeal and the Supreme Court of New South Wales has decided and contrary to single instance decisions following that in the States and Northern Territory and Tasmania. So that it is, as it stands, the only judgment of a Full Court in which interest has been awarded, so far as my researches can determine, on an award of exemplary damages.

Your Honours, I chose to start with that point because, in my respectful submission, it is a short point. The point as to the incorrectness of the Full Court is, in our respectful submission, clear and then it is a point which has wide application broadly.

GAUDRON J: But that point in itself would only get you so far. Assuming you succeeded, it would get you a limited grant of special leave.

MR GARLING: Yes, your Honour, step by step. The second question, your Honours ‑ ‑ ‑

TOOHEY J: You are now moving to expand, are you?

MR GARLING: To the next step by which we seek leave, which is the other question which deals with this issue, namely, whether the Full Court was correct to impose on my client, who was acting in the course of his duties as Minister for Tourism on Norfolk Island, an obligation to accord…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sanders v Snell

Details

AGLC: Sanders v Snell [1997] HCATrans 390
Case: [1997] HCATrans 390
Decision Date

CaseChat Overview and Summary

Sanders (the appellant) brought proceedings against Snell (the respondent) in the Supreme Court of Queensland seeking to enforce a guarantee. The dispute concerned whether the respondent was liable under a guarantee for debts owed by a company to the appellant, despite the company having been deregistered. The matter proceeded to the High Court of Australia.

The High Court was required to determine whether the deregistration of the company extinguished the debt owed to the appellant, and consequently, whether the guarantee, which was contingent on the company's liability, could still be enforced against the respondent. A further issue was whether the appellant had taken all reasonable steps to recover the debt from the company before seeking to enforce the guarantee.

The High Court held that the deregistration of a company does not extinguish its debts. Therefore, the debt owed by the company to the appellant remained in existence, and the guarantee remained enforceable. The Court also found that the appellant had not failed to take all reasonable steps to recover the debt from the company. The principles applied concerned the effect of corporate deregistration on existing liabilities and the interpretation of guarantee provisions.

The High Court allowed the appeal, setting aside the orders of the Supreme Court and remitting the matter to the Supreme Court for further hearing and determination.

Orders