State of New South Wales v Loh Min Choo (No 2)

[2012] NSWCA 373

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

State of New South Wales v Loh Min Choo (No 2) [2012] NSWCA 373

Hearing dates:

On the papers

Decision date:

29 November 2012

Before:

McColl JA at [1];
Campbell JA at [2];
Macfarlan JA at [3]

Decision:

The following orders are made in addition to order (1) made on 6 September 2012:

(1) In lieu of order (2) made on 6 September 2012, set aside the orders made at first instance on 5 December 2011, as amended on 12 January 2012.

(2) In lieu of the orders set aside:

(a) Judgment for the respondents against the first appellant in the amount of $530,205.

(b) Order the first appellant to pay the respondents' costs of the proceedings at first instance.

(3) In respect of the payment of $1,000,000 made by the first appellant to the respondents on 3 January 2012 pursuant to the judgment entered at first instance, order the respondents to repay $503,687.50 to the first appellant forthwith.

(4) Note that no order is made as to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - consequential orders - no issue of principle

Legislation Cited:

Civil Procedure Act 2005
Interpretation Act 1987
Property, Stock and Business Agents Act 2002

Cases Cited:

Coulton v Holcombe [1986] HCA 33; 162 CLR 1
Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481
Patel v R [2012] HCA 29; 86 ALJR 954

Category:

Consequential orders

Parties:

State of New South Wales (First Appellant)
Commissioner for Fair Trading, Department of Finance and Services (Second Appellant)
Loh Min Choo (First Respondent)
Lim Teck Beng (Second Respondent)

Representation:

Counsel:
B Zipser (Appellants)
A Ogborne (Respondents)
Solicitors:
Department of Finance and Services (Appellants)
CFC Lawyers (Respondents)

File Number(s):

CA 2010/149235

 Decision under appeal 

Jurisdiction:

9111

Citation:

Loh Min Choo v State of New South Wales [2011] NSWSC 1477

Date of Decision:

2011-12-01 00:00:00

Before:

Associate Justice Harrison

File Number(s):

SC 2010/149235

Judgment

1. McCOLL JA: I agree with Macfarlan JA.

1. CAMPBELL JA: I agree with Macfarlan JA.

1. MACFARLAN JA: The Court gave judgment on this appeal on 6 September 2012. It directed that the parties lodge either a form of consent order identifying the further orders to be made to give effect to the Court's judgment or written submissions on that topic. As the parties were unable to agree on the requisite orders, written submissions were lodged as directed.

1. Subject to the resolution of two issues, the orders proposed by the appellant are agreed by the respondents.

1. First, the respondents contend that the statutory cap on recovery imposed by s 175 of the Property, Stock and Business Agents Act 2002 (Principal Judgment [71] - [73]) applies separately in respect of each of the forms of claim lodged by the respondents with the Director-General. These three claims are referred to in [8] of the Principal Judgment. Although the third claim, relating to a property at Maroubra, was not relevant to the appeal, it was, contrary to the implication in [10] of the Principal Judgment, within the ambit of the proceedings at first instance.

1. As pointed out in the appellant's recent submissions, the proceedings at first instance were conducted upon the basis that the total of the respondents' three claims was subject to the statutory cap and the respondents were not entitled to an amount up to the statutory cap in respect of each of the three claims. This is clear from the respondents' statement of claim (Second Further Amended Statement of Claim p 2), the respondents' written submissions at first instance dated 5 December 2011 and the primary judge's finding at [151] of her judgment. Moreover the respondents did not raise the present argument by a Notice of Cross-Appeal or Notice of Contention, nor did they put it at first instance or on the hearing of the appeal.

1. The respondents are in my view bound by the conduct of their case at first instance and on appeal (see for example Coulton v Holcombe [1986] HCA 33; 162 CLR 1) and are therefore precluded from raising the present argument now. As held in Metwally v University of Wollongong [1985] HCA 28; 59 ALJR 481, '[e]xcept in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity do so' (see also Patel v R [2012] HCA 29; 86 ALJR 954).

1. Secondly, the respondents contend that the appellant's payment of the judgment at first instance (of which the appellant is now entitled to restitution in part) was deficient because it did not include an amount of interest for the period between the date upon which the judgment took effect (5 December 2011) and the date of payment (3 January 2012). They claim that they were entitled to that interest under s 101 of the Civil Procedure Act 2005 which provides for interest to be payable on unpaid judgments, save where the Court orders otherwise or the judgment "is paid in full within 28 days after the date on which the judgment takes effect unless the court orders to the contrary" (see s 101(3)). The period of 28 days from the date the judgment took effect (5 December 2011) expired on Monday 2 January 2012.

1. 2 January 2012 was a public holiday and I accept the appellants' submission that s 36(2) of the Interpretation Act 1987 resulted in the appellants' payment on 3 January 2012 being within the period referred to in s 101(3). Section 36(2) is in the following terms:

"(2) If the last day of a period of time prescribed or allowed by an Act or instrument for the doing of any thing falls:

(a) on a Saturday or Sunday, or

(b) on a day that is a public holiday or bank holiday in the place in which the thing is to be or may be done,

the thing may be done on the first day following that is not a Saturday or Sunday, or a public holiday or bank holiday in that place, as the case may be."

1. In any event, I would, if necessary, have made an order under s 101(1) that interest not be payable for the period to 3 January 2012 as the respondents' solicitor did not respond until 1.29 pm on Friday 30 December 2011 to a letter of 23 December 2011 from the appellant's solicitor asking the respondents' solicitor to "urgently advise how the two $500,000 payments should be made to your clients". The appellant submits, without contradiction, that following receipt of the email at 1.29 pm on Friday 30 December 2011 it was not practical to effect payment before the weekend and the public holiday.

1. A further reason for finding against the respondents on this point is that they did not raise it at the hearing of the appeal, despite its obvious relevance to the quantum of their entitlement to payment. As a result, they are precluded from raising the point now.

1. I note that some of the matters to which I have referred were first raised in the appellants' post-judgment submissions in reply. However those submissions responded in part to a point raised for the first time in the respondents' submissions and the respondents did not subsequently seek leave to make any further submissions.

ORDERS

1. As the only two points raised by the respondents have been resolved in favour of the appellants, the following orders, which reflect the substance of the orders proposed by the appellants, should be made, in addition to order (1) made on 6 September 2012:

(1) In lieu of order (2) made on 6 September 2012, set aside the orders made at first instance on 5 December 2011, as amended on 12 January 2012.

(2) In lieu of the orders set aside:

(a) Judgment for the respondents against the first appellant in the amount of $530,205.

(b) Order the first appellant to pay the respondents' costs of the proceedings at first instance.

(3) In respect of the payment of $1,000,000 made by the first appellant to the respondents on 3 January 2012 pursuant to the judgment entered at first instance, order the respondents to repay $503,687.50 to the first appellant forthwith.

(4) Note that no order is made as to the costs of the appeal.

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Decision last updated: 29 November 2012