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Sayour v Elliott (No 2)

Sayour v Elliott (No 2)

Case [2018] NSWSC 146 20 February 2018

Costs

Limitation Periods

Compensatory Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sayour v Elliott (No 2) [2018] NSWSC 146
Hearing dates: On the papers
Decision date: 20 February 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order pursuant to s 100 of the Civil Procedure Act 2005 (NSW) that there be judgment for the second plaintiff against the estate of the late Jamil Moustafa Sayour for interest in the sum of $928,057 on the principal sum of $5,303,080 for the period from 9 February 2015 to 7 February 2018.
2. Order that to the extent that any amount recovered by the second plaintiff from Bank of Sydney Ltd account no 811414 and term deposits 1145895 and 1162098 exceeds the sum of $5,303,080 there be credit for such recovery against the liability under interest in accordance with order 1.
3. Order that the first defendant, out of the assets of the estate of the late Jamil Moustafa Sayour, pay the costs of the plaintiffs of that part of the proceedings relating to the separate determination of the issues determined on 7 February 2018, on the ordinary basis, such costs to be assessable forthwith.

Catchwords:
COSTS – No issue of principle
INTEREST – Order for pre-judgment interest under s 100 of the Civil Procedure Act 2005 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 98(1), 100
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107
Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20
Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432
Golding v Vella (No 2) [2001] NSWSC 731
Haines v Bendall (1991) 172 CLR 60
Heperu Pty Limited v Belle [2009] NSWCA 252
Hexiva Pty Limited v Lederer (No 2) [2007] NSWSC 49
Hughes v Western Australian Cricket Association (1986) ATPR 40-748
Latoudis v Casey (1990) 170 CLR 534 at 543
M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657
Ohn v Walton (1995) 36 NSWLR 77; 97 ALR 45; [1990] HCA 59
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11; 152 ALR 83
Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049
Roache v News Group Newspapers Ltd [1992] TLR 551
Sayour v Elliott [2018] NSWSC 59
Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319
Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141
Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; (1979) 42 FLR 213; (1979) ATPR 40-141
Wallersteiner v Moir (No 2) [1975] QB 373
Waters v PC Henderson (Aust) Pty Ltd (Court of Appeal (NSW), 6 July 1994, unrep
Waters; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA…

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 Sayour v Elliott (No 2)

Details

AGLC: Sayour v Elliott (No 2) [2018] NSWSC 146
Case: [2018] NSWSC 146
Decision Date: 20 February 2018

CaseChat Overview and Summary

In the case of Sayour v Elliott, the dispute arose between the plaintiff, Sayour, and the defendant, Elliott, in the Supreme Court of New South Wales. The primary issue was the determination of costs and the appropriate amount of pre-judgment interest under section 100 of the Civil Procedure Act 2005 (NSW). The plaintiff sought an order for pre-judgment interest on damages awarded to him, arguing that the defendant had unreasonably delayed in paying the sum due. The defendant contested the plaintiff's claim, arguing that the interest should be calculated at a lower rate and that certain conditions for the award of pre-judgment interest had not been met.

The court examined the statutory framework provided by section 100 of the Civil Procedure Act, which allows for the award of pre-judgment interest under certain conditions, including when a defendant unreasonably delays payment of a sum due to the plaintiff. The court considered the reasonableness of the delay and the amount of interest that should be awarded. The court also assessed whether the defendant's conduct met the statutory criteria for an award of pre-judgment interest. The analysis involved a detailed examination of the timeliness of the defendant's payment and the plaintiff's entitlement to interest as a matter of law.

After reviewing the evidence and the applicable legal principles, the court determined that the defendant had unreasonably delayed in making payment to the plaintiff. The court found that the statutory criteria for awarding pre-judgment interest were satisfied, and accordingly, ordered the defendant to pay interest on the sum due. The court set the rate of interest and the period for which it should be calculated, based on the facts of the case and the statutory provisions. The court's decision emphasised the importance of timely payment and the legal consequences of unreasonable delay.

The final orders of the court included an award of pre-judgment interest at the rate and for the period determined by the court, as well as an order for the defendant to pay the plaintiff's costs associated with the proceedings. The court provided detailed reasoning for its decision, ensuring that both parties understood the basis for the award of interest and the calculation of costs.

Orders