St George Bank Limited v Quinerts Pty Ltd (No 2)

[2010] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3839 of 2008

ST GEORGE BANK LIMITED (ACN 097 263 048)
	Appellant
v
QUINERTS PTY LTD (ACN 067 715 584) (NO 2)	Respondent
	AND BETWEEN:
QUINERTS PTY LTD (ACN 067 715 584)	Cross-Appellant
v
ST GEORGE BANK LIMITED (ACN 097 263 048)	First Cross-Respondent
and
ALEXANDER TVARKOVSKI (NO 2)	Second Cross-Respondent

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JUDGES	NETTLE and MANDIE JJA and BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 October 2009
DATE OF JUDGMENT	28 October 2009
DATE OF FURTHER ORDER	31 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 68
JUDGMENT APPEALED FROM	St George Bank Limited v Quinerts Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Kennedy, 4 August 2008)

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PRACTICE AND PROCEDURE – Appeal – Interest – Entitlement to interest post judgment – Dispute by solicitors as to amount payable – Ambiguity – Orders amended in exercise of inherent jurisdiction.  

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Appearances:	Counsel	Solicitors
For the Appellant/ First Cross-Respondent	No Appearance	Middletons
For the Respondent/ Cross-Appellant	No Appearance	DLA Phillips Fox
For the Second  Cross-Respondent	No Appearance

NETTLE JA
MANDIE JA
BEACH AJA:

1. On 28 October 2009 we ordered that the appeal in this matter be allowed; the judgment of the County Court of 16 July 2008 (authenticated on 4 August 2008) be set aside; and, in lieu thereof, there be judgment for the appellant in the sum of $173,638.96 (being $145,000, plus recovery costs of $28,638.96) and interest thereon of $29,628.04 calculated in accordance with the Penalty Interest Rates Act 1983 and computed from the date of issue of the writ until the date of 16 July 2008, being the date of the County Court judgment.

1. A squabble has developed between the solicitors for the appellant and the solicitors for the respondent as to whether post-judgment interest pursuant to s 101 of the Supreme Court Act 1986 should run from 4 August 2008 (being the date of authentication of the County Court judgment) or from 28 October 2009 – a difference in result of approximately $4,000 – and the parties have sought a determination as to what was intended.  Although invited to appear by counsel to argue the point, the parties chose instead to put their submissions in writing and we have acceded to their request that we deal with the matter on that basis.

1. The general rule in civil proceedings is that when damages are re-assessed on appeal, as they were in this case, the judgment of this court takes effect from the date of the order made on appeal unless the court either expressly or by implication directs that the judgment as substituted is to take effect from some other date.[1]

   [1]Nicol v Allyacht Spars Pty Ltd (No 2) (1988) 165 CLR 306a>, 311-312; Hartley Poynton Ltd v Ali (No 2) [2005] VSCA 314, [9].

1. In this case, the dispute is as to whether the court impliedly directed that the judgment of the court was to take effect from the date of the County Court judgment.

1. It may be doubted that we have the jurisdiction to provide an advisory opinion as to what was intended by our orders. But we are in no doubt that what we intended to achieve by our order of 28 October 2009 was that the judgment which we substituted for the County Court judgment should speak from the date of the County Court judgment, and thus carry post-judgment interest from that date. That is why we ordered that the judgment carry interest pursuant to s 60 of the Supreme Court Act 1986 from the date of issue of the writ until only 16 July 2008, and we are a little surprised that it was not so understood.  

1. Given, however, the dispute which has arisen, and such doubts as there may be about our jurisdiction to provide an opinion as to the effect of our order, we have concluded that the best thing to do is to amend our order, pursuant to our inherent jurisdiction to clear up any ambiguity or uncertainty,[2] and thus put the matter beyond doubt

   [2]Fritz v Hobson (1880) 14 Ch D 542, 562; Commissioner of Taxes v British Australian Wool Realisation Assoc Ltd [1932] VLR 109, 112.

1. We shall order, therefore, that:

1)    Our order of 28 October 2009 be amended by substituting for paragraph 4(i) thereof, the following:

4(i) There be judgment for the appellant (plaintiff) against the respondent (defendant) in the sum of $173,638.96 plus interest thereon of $29,638.04, such judgment to take effect on 4 August 2008;

2)   The respondent pay the costs of this application.

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