Sange Holdings Pty Ltd v J.D. & J.C. Scott Nominees Pty Ltd

[1991] FCA 345

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JUDGMENT No. H3 I ?! ,,,,....

IN THE FEDERAL COURT OF AUSTRALIA	)	NO. QG 141 of 1990
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: SANGE HOLDINGS PTY. LTD.

Applicant

AND: J.D. AND J.C. SCOTT NOMINEES PTY. LTD.

trading as J.C. SCOTT CONSTRUCTIONS

First Respondent

AND: m

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	11 APRIL 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    The second respondent pay the applicant the sum of $755,836.04.

2.   The second respondent pay the applicant's costs of and incidental to the proceedings, to be taxed.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

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IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 141 of 1990
QUEENSLAND DISTRICT REGISTRY	1	I
GENERAL DIVISION	)

BETWEEN: SANGE HOLDINGS PTY. LTD.

Applicant

AND: J.D. AND J.C. SCOTT NOMINEES PTY. LTD.

tradina as J.C. SCOTT CONSTRUCTIONS

First Respondent

AND: J.C. SCOTT DEVELOPMENTS PTY. LTD.

Second Respondent

C O W : PINCUS J. PLACE: BRISBANE

m: 11 APRIL 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter, I gave judgment yesterday against the first respondent in the sum of $1,053,482 with costs, and I adjourned the proceedings to a date to be fixed. That date is today, when further evidence has been produced.

The evidence satisfies me that the applicant has a

good claim under the Queensland statute of the Subcontratorsr Charaes Act 1974-1976 in that a series of notices was given,

as set out in the evidence, which did effectively attach

moneys due between the respondents and which were unpaid.

It appears to me that appropriate adjustments to the amounts due under the notices have been made to take account of the views which I expressed as to the proper quantum of the claim. The result is that the judgment must go, under the Subcontractors' Charaes Act, against the second respondent in the sum which is now claimed, which is $755,836.04.

Mr. Perry has also submitted that interest should be awarded. The amounts of interest which are claimed are set out in a schedule which he has handed to me by way of a submission, and the schedule is calculated at rates varying from 12.5 to 17.5 per cent.

The question which has troubled me is whether or not it is an appropriate case to order interest. The amount of interest, however one works it out, is indeed a significant sum. On the other hand, I do not think that one should automatically or as a matter of course order interest in a case like this. I have been somewhat troubled, as indeed Mr. Perry has mentioned, by the one-sided nature of the information available.

It is, of course, not the applicant's fault, but one does not know why these moneys were not paid. Only $366,000

was paid, when a much larger sum should have been paid. It may be that, as one might say, through no fault of the second respondent, other claims took priority: the collapse might have been averted by paying other claims. In fact, it was not averted, and the applicant - unfortunately for it - finds itself substantially out of pocket.

The circumstances are not such, in my opinion, as to justify an award of interest. I take into account, of course, the fact that I have held that the notices were, although not

in any great sum, somewhat over-stated.

I therefore propose to confine the judgment to the

amount due, which is, as I have said, $755,836.04. There will

be a further judgment in the matter, then, that the second

respondent pay the applicant that sum, and that the second respondent pay the applicant's costs of and incidental to proceedings to be taxed.

I certify that this and the

two preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

Associate

Date Apr i l 1991