St George v Wallis (No 2)

[2001] NSWSC 51

CITATION:	St George v Wallis (No 2) [2001] NSWSC 51
CURRENT JURISDICTION:	Equity Division Commercial List
FILE NUMBER(S):	SC 50049/93
HEARING DATE(S):	Written Submissions 12/02/01 and 13/02/01
JUDGMENT DATE:	14 February 2001
PARTIES :	St George Commercial Credit Corporation Limited - Plaintiff Barry Donald Wallis and Anne Wallis - Defendants
JUDGMENT OF:	Rolfe J

COUNSEL :	Mr C.R.C. Newlinds - Plaintiff Mr P.M. Biscoe QC - Defendants
SOLICITORS:	Kemp Strang - Plaintiff Bowles and Company - Defendants
CATCHWORDS:	Application to re-open refused
LEGISLATION CITED:	Section 94 Supreme Court Act 1970 Part 40 rule 9(1) Supreme Court Rules
CASES CITED:	Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207
DECISION:	Application of plaintiff to re-open judgment of 2 February 2001 in relation to the question of interest dismissed and it to pay the defendants' costs of the application.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

ROLFE J

WEDNESDAY, 14 FEBRUARY 2001
50049/93 - ST GEORGE COMMERCIAL CREDIT CORPORATION LIMITED v WALLIS & ANOR (NO 2)

JUDGMENT

HIS HONOUR:

Introduction

1 On 29 and 30 January 2001, I heard argument on the issues raised by a Notice of Motion filed on 28 September 2000 on behalf of Mr and Mrs Wallis, for whom Mr P.M. Biscoe of Queen’s Counsel appeared, in which they sought judgment against St George Commercial Credit Corporation Limited, (“St George”), for which Mr C.R.C. Newlinds of Counsel appeared, in the sum of $156,099.99; interest thereon pursuant to s.94 of the Supreme Court Act 1970 from 23 August 1993 until judgment; and costs. On 2 February 2001 I published my reasons for judgment and ordered judgment for Mr and Mrs Wallis in the sum of $279,776.06, being the principal sum and interest of $123,676.07 as claimed. In ordering interest, I noted that Mr Newlinds had made no submissions that it should not be awarded, as it was, from the date from which it was sought. I do not propose to repeat what I said in that judgment. I shall assume that the reader of these reasons has access to it.

2    By letter dated 12 February 2001 to my Associate, Mr Newlinds advised that he was instructed to make an application “to re-open the argument of the matter to ask his Honour to reconsider the date from which he has ordered interest to run ..”. Mr Newlinds enclosed a copy of his submissions in support of that application and of those he would wish to make should it succeed. The letter continued:-

“For my part I would be content for his Honour to deal with the matter without the need for further oral argument.”

3    It concluded by stating that a copy of the letter and the submissions had been forwarded to Mr Biscoe. On 13 February 2001, Mr Biscoe furnished his submissions opposing the application to re-open and any variation in the calculation of interest. In paragraph 1 he stated:-

“Mr & Mrs Wallis also agree to the Court dealing with the matter without the need for further oral argument.”

4    I am satisfied that it is appropriate for me to deal with the matter in the way in which the parties have requested.

The Written Submissions

5    Mr Newlinds submitted that my decision accepted and applied the construction of the agreement advanced by Mr Biscoe and ordered that the principal sum with interest should be repaid. He continued that St George applied for leave to re-open to argue that the correct date from which interest should run “consistent with the Court’s reasoning, is the date when the Court of Appeal made orders setting aside the guarantee”. That was 7 March 1997. The submissions continued:-

“(i) It is accepted that no submissions were made on behalf of St George on the question of interest at the hearing of the Notice of Motion.
(ii) That is explicable by there being a number of different routes by which the Wallis (sic) could potentially succeed before the Court.
(iii) There can be no prejudice to Mr and Mrs Wallis in allowing this application. St George would concede that it should pay any further costs of this application in any event.
(iv) Consistent with the Court’s reasoning the date St George was obliged to pay the monies to Mr and Mrs Wallis was 7 March 1997. Before that date St George had every right pursuant to the parties (sic) agreement to retain the monies.”

6 Mr Biscoe submitted, firstly, that whilst Part 40 rule 9(1) of the Supreme Court Rules provides that the Court may vary a judgment where a Notice of Motion is filed before entry of judgment and in the present case there has been no entry of judgment, no Notice of Motion has been filed. I do not propose to stay to further consider that submission. It is in the interests of the parties, and particularly his clients, to have the matter dealt with as expeditiously and inexpensively as possible.

7 Mr Biscoe nextly submitted that there is a public interest in maintaining the finality of litigation and great caution should be exercised in varying a judgment. He referred to the basic authorities, which establish what must be shown before that step will be taken: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672; and De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207. He submitted that St George has not discharged that burden.

8    In my opinion that submission should be accepted. Mr and Mrs Wallis made a claim for interest in the Notice of Motion and, on the hearing, Mr Biscoe confirmed that that claim was being maintained. I cannot accept the submission on behalf of St George that the failure to make submissions about interest was explicable for the reasons set forth in sub-paragraph (ii). Mr and Mrs Wallis were seeking the payment of a monetary sum and interest thereon and, even if, about which I have some doubt, there were different routes by which they could obtain payment of the principal sum, once they did they were seeking interest from the date they specified. I am not satisfied that there is any valid reason why submissions as to the date from which interest should run were not made at the hearing.

9    In these circumstances, I am of the opinion that the application to re-open should be dismissed with costs. However, others may come to a different view and, accordingly, I shall decide, in coming to a final conclusion as to whether the application to re-open should be allowed, whether interest should run from any different date. If that question be answered in the negative then there will be no purpose in granting leave to re-open.

10    In my opinion, it must be answered in that way. The decision of the Court of Appeal on 7 March 1997 over-ruled my decision and made it clear that I should have decided that the Guarantees were not enforceable. In those circumstances, for the reasons I gave in my judgment of 2 February 2001, St George was not entitled to retain the money and that was a situation which obtained from 23 August 1993. Since that date St George has had the advantage of having the money and Mr and Mrs Wallis have had the disadvantage of not having it. The purpose of an award of interest, which is a discretionary remedy, is to compensate Mr and Mrs Wallis for not having the money for the total period to which they were entitled to it.

11    In these circumstances, even if I had been persuaded that this is an appropriate case to re-open, I would have declined to do so on the basis that St George’s application was doomed to fail.

Order

12    I order that the application of St George Commercial Credit Corporation Limited to re-open my judgment of 2 February 2001 in relation to the question of interest be dismissed and that it pay the costs of Mr and Mrs Wallis of the application.

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Last Modified: 02/14/2001