Shoreham Park Pty Limited v John Foote Bloodstock Pty Limited
[2002] NSWSC 820
•3 September 2002
CITATION: Shoreham Park Pty Limited v John Foote Bloodstock Pty Limited & Anor [2002] NSWSC 820 FILE NUMBER(S): SC 50058/02 HEARING DATE(S): 3/09/02 JUDGMENT DATE: 3 September 2002 PARTIES :
Shoreham Park Pty Limited (Plaintiff)
John Bloodstock Pty Limited (1st Defendant)
Emily Krystna Pty Limited (2nd Defendant)JUDGMENT OF: Einstein J
COUNSEL : Mr D Kell (Plaintiff)
Mr D Villa (Defendants)SOLICITORS: Hemphill & Co (Plaintiff)
Moray & Agnew (Defendants)CATCHWORDS: Practice and procedure - Costs - Interest on contract up to Judgment - Interest as provided in rules thereafter CASES CITED: Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
Economic Life Assurance Society v Usborne [1902] AC 147
Fewings (1884) 25 Ch D 338
Idoport Pty Limited v National Australia Bank Limited (2000) 49 NSWLR 51
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Murray v Figge (1974) 4 ALR 612
Re Barrell Enterprises [1972] 3 All ER 631
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88
Wentworth v Woollahra Municipal Council (No. 2) (1982) 149 CLR 672
Wentworth v Rogers [No 9] (1987) 8 NSWLR 388DECISION: Judgment against first defendant for $639,582.19.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST
EINSTEIN J
Tuesday 3 September 2002 ex tempore
Revised 17 September 2002
50058/02 SHOREHAM PARK PTY LIMITED v JOHN FOOTE BLOODSTOCK PTY LIMITED & ANOR
JUDGMENT
1 In these proceedings a reserved Judgment was delivered on 30 August 2002. The matter has been before the Court today for the purpose of the Court hearing submissions as to costs and for the parties to bring in short minutes of order.
2 There is no issue between the parties but that as far as the costs orders are concerned, the orders should be an order that the first defendant pay the plaintiff’s costs of the proceedings and that there be no order as to costs as between the plaintiff and the second defendant, so that insofar as the plaintiff’s claim against the second defendant is concerned neither the plaintiff nor the second defendant is to be ordered to pay the costs of the other.
3 The issues which now separate the parties concern the defendants application to re-open the hearing for the purpose of putting forward a claim that the interest claimed by the plaintiff as payable on the unpaid purchase price and other monies calculated on a daily basis at the rate of fifteen per cent per annum, should be held to be a penalty.
4 Mr Villa for the defendants has made plain that on his instructions an application to re-open for this purpose should be acceded to.
5 Whilst Mr Villa has indicated that his client is content to file a formal notice of motion and a formal affidavit in support in this regard, he has made quite plain from the bar table what the notice of motion would cover and what the affidavit evidence would cover. Essentially the application would be to seek leave a) to re-open the judgment; b) to amend the form of grounds of defence which had been before the Court prior to the judgment being delivered. The amendment would raise the claim that the Inglis Conditions of Sale paragraph 9.7 provision for interest to be payable on the unpaid purchase price and other monies calculated on a daily basis at the rate of fifteen per cent per annum, constitutes an unenforceable penalty.
6 The basis on which such application is pressed is simply that the matter was overlooked by those advising the defendants and as I have understood Mr Villa who has shortly addressed, there is an acceptance that this is a matter which would have required to be specially pleaded.
7 The record will show that the Contentions section of the further amended summons in paragraph 18 read as follows:
“Pursuant to paragraph 9.7 of the Inglis Conditions of sale:
- a) the Vendor may sue the purchaser to recover any unpaid purchase price and interest and any other monies payable by the purchaser in connection with the sale;
- b) interest is payable on the unpaid purchase price and other monies calculated on a daily basis at the rate of fifteen per cent per annum.”
8 The record will show that the notice of grounds of defence to that paragraph read:
“In answer to paragraph 18 of the plaintiff’s contentions the defendants:
- a) rely upon the terms of the Inglis Conditions of Sale as if they were fully set out herein
- b) deny that the purchase price, interest or other monies are owing to the plaintiff”
9 As Mr Kell for the plaintiff has pointed out, the defence to paragraph 18 of the plaintiff’s contentions in terms sought to rely upon the very terms of the Inglis Conditions of Sale and nowhere was the ‘special’ defence, as I would describe it, of “penalty”, pleaded or disclosed. It was not opened as an issue by the defendants counsel and there were no submissions advanced in relation to the issue.
10 Part 15 Rule 13 of the Supreme Rules expressly provides that in a defence or subsequent pleading the party pleading shall plead specifically any matter which if not pleaded specifically may take the opposite party by surprise. Part 15 Rule 13 (2) gives some examples.
11 In my view it is clear enough that a defence of penalty would require to be specially pleaded. As I have said I did not understand Mr Villa to contend to the contrary.
12 In those circumstances the question which arises is whether this is an appropriate occasion for the exercise of the Court’s discretion in favour of the application to re-open the judgment for the purpose of raising this issue. There is of course a public interest in maintaining the finality of litigation which I accept requires great caution in the exercise of the power to re-open to enable a hearing; Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 302 – 3; Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, Wentworth v Rogers [No 9] (1987) 8 NSWLR 388, Re Barrell Enterprises [1972] 3 All ER 631, Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88; Murray v Figge (1974) 4 ALR 612.
13 Whilst certainly the Court accepts as given the observations by Kirby J in State ofQueensland v JL Holdings Pty Ltd (1997) 189 CLR 146 to the effect that an important factor to be taken into account when applications for leave to amend are pursued will include the fact that mistakes by legal advisers can be excused depending upon the circumstances, it is plain that the particular circumstances which arise in relation to any particular application required to be assessed in the light of the then merits.
14 Further the ‘overriding purpose’ rule to which the Court is obliged to pay the closest of attention, provides that the overriding purpose of the rules in their application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. The rule was the subject of observations in Idoport Pty Limited v National Australia BankLimited (2000) 49 NSWLR 51. There is further the circumstance that these proceedings were proceedings before the Commercial List.
15 An enquiry of Mr Villa in relation to the approach which the defendants would take if the leave to re-open was granted, elicited the response that there would be tendered a copy of the Reserve Bank of Australia's monthly bulletin setting out certain tables in terms of current and historical rates and various categories. Even at the stage when Mr Villa was indicating his instructions and notwithstanding the fact that this matter was before the Court at quarter to ten this morning and was then stood down until four pm this afternoon, the defendant did not appear to have a copy of that bulletin.
16 In my view this is a circumstance in which the application to re-open should be dismissed. There are no particular matters to be taken into consideration other than those already referred to in the exercise by the Court of its discretion. The fact is that the matter in terms of the plaintiff’s case was specifically pleaded and that the issue which the defendants now seek to re-open and to litigate should have been litigated during the course of the hearing proper. Questions of penalty are by no means simple questions.
17 The application for leave to re-open is therefore to be regarded as dismissed and for the reasons that I have given it seems an arid exercise to require the defendants to formally move by motion supported by affidavit, when Mr Villa has made very plain in a careful and frank fashion, precisely what the content of such notice of motion and supporting materials would involve.
18 The remaining questions concern firstly the plaintiff’s claim to a declaration of an entitlement to continuing interest following the delivery of judgment and the making of final orders for judgment in the plaintiff’s favour. The claim is to continuing interest on the sum of $550,000.00 until the date of payment in the amount of $226.00 per day pursuant to clause 9.7 of the Inglis Conditions of Sale. In that regard it seems to me that the principle is that contractual entitlements to interest merge in the judgment and that the plaintiff’s entitlement to interest thereafter depends upon the rules of court; [Ex parteFewings (1884) 25 Ch D 338; Economic Life Assurance Society v Usborne [1902] AC 147. To the extent that there is a discretion in the Court in terms of the provision of section 95 and to the extent that the Court would have power to exercise that discretion by making an order in the nature of the order sought by the plaintiff, to my mind that discretion should be exercised against the making of that order.
19 The final matter which arises for determination concerns the precise orders which should be made insofar as the plaintiff’s claim against the second defendant is concerned. Mr Kell of counsel has submitted that the appropriate order is that the plaintiff’s claim against the second defendant be dismissed with no order as to costs and that the Court should further order that the plaintiff not bring fresh proceedings or claim the same relief in fresh proceedings. Mr Villa has argued that the appropriate order is that judgment be entered for the second defendant and that there be no order as to costs.
20 As I have made plain to both counsel, it does not seem to me that there is any material difference of substance as between these two positions. In any event as it seems to me and even if the only order was that the plaintiff’s claim against the second defendant be dismissed, it would seem inevitable that any attempt by the plaintiff to commence fresh proceedings against the second defendant based on the same causes of action or substantially seeking that relief would be instantly the subject of a defence by reason of an Anshun estoppel.
21 In the circumstances in which the matter has been the subject of such close and concerted cross-submissions I am content that the order be judgment for the second defendant as against the plaintiff - noting that there be no order as to costs in that regard.
22 The Court’s orders are as follows:
1) Judgment be entered against the first defendant in the sum of $639,582.19 (comprising the amount of $550,000.00 plus GST in the sum of $55,000 plus interest in the amount of $34,582.19, calculated at the rate of 15% per annum pursuant to clause 9.7 of the Inglis Conditions of Sale for the period 4 April to 3 September 2002);
2) Order that the first defendant pay the plaintiff’s costs of the proceedings;
3) Order that Judgment be entered for the second defendant;
4) Order that the plaintiff and the second defendant each pay their own costs of the plaintiff’s proceedings against the second defendant;
5) On the defendant’s undertaking to the Court promptly to apply for expedition of any appeal from the judgment, order staying the above orders up to and including 1 October 2002.
___________________I certify that paragraphs 1 - 22
are a true copy of the reasons
for judgment herein of
the Hon. Justice Einstein
given on Tuesday 3 September 2002
ex tempore and revised
on 17 September 2002
Susan Piggott
Associate
17 September 2002
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