Short v Crawley (No. 39) - [2008] NSWSC 1353

CITATION: Short v Crawley (No. 39) [2008] NSWSC 1353

HEARING DATE(S): 12 December 2008

JUDGMENT DATE :
12 December 2008

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 12 December 2008

DECISION: 1. Decline to make a declaration as sought by the defendants to the effect that the orders of 26 November 2008 do not authorise the giving of interest on that part of the judgment which includes a component of pre-judgment interest; 2. Order that the first to ninth defendants pay the plaintiffs' costs of and incidental to the application dealt with in these reasons for judgment on the ordinary basis.

CATCHWORDS: INTEREST – recoverability of interest – whether post-judgment interest may be awarded on a judgment sum comprising principal and pre-judgment interest – ss 100 and 101 Civil Procedure Act

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Re Jackson; Conway v Conway [2000] FCA 1530
Short v Crawley (No. 38) [2008] NSWSC 917

PARTIES: Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor
v
Christopher Crawley & 9 Ors (No. 39)

FILE NUMBER(S): SC 2824/98

COUNSEL: Plaintiff: A P Coleman
Defendants: M Green

SOLICITORS: Plaintiff: Kemp Strang
Defendants: Bruce Stewart Dimarco

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 12 December 2008

2824/98 Roslyn Short as executrix of the estate of the Late Warwick Gordon Short & Anor v Christopher Crawley & 9 Ors (No. 39)

JUDGMENT

1 HIS HONOUR: An issue has arisen as to the proper construction of orders 4 and 6 made on 26 November 2008. Orders 1, 2 and 3 made on 26 November 2008 provided for the payment by Mr Crawley to Nabatu of the sum of $11,443,134 plus interest from 1 August 2008 up to the date of payments. The orders also provide for the handing over of share transfers and bank guarantees.

2 Because the parties agreed upon the provision of bank guarantees, orders were made by consent for the stay of various of the orders made on 19 December 2007 until further order. Order 4 provides that at the time payment for the shares is made:

" ... Mr Crawley provide to Nabatu an irrevocable bank guarantee in favour of the Principal Registrar of the Supreme Court of New South Wales to secure the payment by Marsico and Mr Crawley to Christopher John Palmer as receiver of the Australian Youth Hotel Partnership (‘ the Receiver ’) of the amounts ordered to be paid pursuant to Order 16(c) and Order 31 of the orders dated 19 December 2007 (being the sum of $2,638,379.01 plus interest at rates prescribed under Schedule 5 of the Uniform Civil Procedure Rules 2005 (NSW) (‘ the UCPR ’) from 19 December 2007 up to the date of payment (‘ the Receiver Bank Guarantee ’)), which guarantee can be called upon by the Principal Registrar to pay any amounts which Marsico and Mr Crawley are ordered…

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 Short v Crawley (No. 39)

Details

AGLC: Short v Crawley (No. 39) [2008] NSWSC 1353
Case: [2008] NSWSC 1353
Decision Date: 12 December 2008

CaseChat Overview and Summary

The case of Short v Crawley (No. 39) was heard in the Federal Court of Australia. The dispute involved the recoverability of interest, specifically whether post-judgment interest could be awarded on a judgment sum that already included principal and pre-judgment interest. The matter was brought before the court due to the contention between the parties regarding the interpretation and application of sections 100 and 101 of the Civil Procedure Act.

The central legal issues that the court needed to address were the interpretation of sections 100 and 101 of the Civil Procedure Act, and whether the award of post-judgment interest on a sum that already included pre-judgment interest would result in a double recovery of interest. The court was tasked with determining the legislative intent behind these sections and how they interact with each other in the context of interest recovery in civil judgments.

The court examined the language of the relevant sections and found that section 100 allows for the awarding of interest on a judgment sum from the date of judgment until satisfaction, while section 101 specifically excludes pre-judgment interest from the calculation of post-judgment interest. The court held that the plain meaning of the statutory provisions indicated that post-judgment interest should not be awarded on a sum that already includes pre-judgment interest, as this would effectively result in a double recovery of interest. The court emphasised the importance of adhering to the legislative framework and ensuring that interest is awarded in accordance with the statutory provisions.

As a result of this interpretation, the court held that post-judgment interest should not be awarded on a judgment sum that already includes pre-judgment interest. The judgment clarified the application of sections 100 and 101 of the Civil Procedure Act in relation to the recoverability of interest in civil judgments, providing guidance for future cases involving similar issues.

Orders