Stenlake v Whipps (No. 2) - [2016] NSWSC 1520

Supreme Court

New South Wales

Medium Neutral Citation: Stenlake v Whipps (No. 2) [2016] NSWSC 1520
Hearing dates: 6 June and 24 August 2016
Date of orders: 28 October 2016
Decision date: 28 October 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Order the defendants/cross-claimants to pay interest under Civil Procedure Act 2005, s 100 on the sum of $80,000 from 29 January 2013 to 24 August 2016. Order the defendants/cross-claimants to pay two thirds of the plaintiff’s costs of these proceedings.

Catchwords: INTEREST AND COSTS – Court orders – equitable charge in the sum of $100,000 over defendant’s/cross-claimant’s property – cross-claimant succeeds in order for return of Mercedes Benz motor vehicle to estate – whether interest up to judgment should be awarded on the sum of $100,000 – what costs order should be made.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
District Court Act 1973, s 134(1)(h)
Property (Relationships) Act 1984
Uniform Civil Procedure Rules 2005 (“UCPR”), rr 42.30(2), 42.34
Cases Cited: Kardos v Sarbett (No. 2) [2006] NSWCA 206
Ruby v Marsh (1975) 132 CLR 642
Screenco Pty Ltd v RL Dew Pty Ltd [2003] 58 NSWLR 720
Stenlake v Whipps [2016] NSWSC 719
Category: Costs
Parties: Plaintiff: Richard Stenlake
Representation:
Counsel

Plaintiff: Mr J.M. Ireland QC
Defendants: Ms R. Winfield

Solicitor
Plaintiff: Daniel McGirr, McGirr Lawyers
Defendants: Sean Christian Radburn, Somerville Laundry Lomax

File Number(s): 2014/46275
Publication restriction: No

Judgment

This is the Court’s second judgment in these proceedings. The Court gave its first judgment on 6 June 2016: Stenlake v Whipps [2016] NSWSC 719. The Court’s first judgment found that the plaintiff, Mr Stenlake, was successful in his claim to an equitable charge in the sum of $100,000 over certain real estate he had improved known in the proceedings as “the Coraki property”.
The defendants/cross-claimants (“the Whipps parties”) were successful in the first judgment in their claim that the estate of the late Lola Whipps is the legal owner of a Mercedes Benz motor vehicle, which Mr Stenlake had given to the deceased as a gift. Mr Stenlake was also successful in arguing for the dismissal of the remainder of the cross-claimant’s claims for particular personal property and effects of the deceased, apart from a number of specific items that the plaintiff/cross-defendant, Mr Stenlake, agreed to return to the cross-claimants. Most of the specific items agreed to be returned have now been returned.
But a number of issues were left unresolved by the first judgment. This second judgment now deals with them. The Court reserved for further consideration at a relief and costs hearing, whether any interest was due on the $100,000 due to the plaintiff and whether an order for judicial sale of the Coraki property were required. The Court also directed in relation to the cross-claim, that if the parties could not otherwise agree and if the Mercedes Benz vehicle were not returned, the Court would hear submissions as to: (1) its market value and (2) whether there was any…

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 Stenlake v Whipps (No. 2)

Details

AGLC: Stenlake v Whipps (No. 2) [2016] NSWSC 1520
Case: [2016] NSWSC 1520
Decision Date: 28 October 2016

CaseChat Overview and Summary

The case of Stenlake v Whipps (No. 2) involved the parties Stenlake, the plaintiff, and Whipps, the defendant and cross-claimant. The dispute centred around the equitable charge of $100,000 over Whipps' property, as well as the return of a Mercedes Benz motor vehicle to the estate. Whipps was successful in their cross-claim for the return of the vehicle. The court had to determine whether interest up to the date of judgment should be awarded on the $100,000 charged to Whipps and what costs order should be made.

The primary legal issue was whether interest should accrue on the $100,000 charged to Whipps from the time the charge was imposed until the date of judgment. Additionally, the court had to decide on the appropriate costs order, taking into consideration the outcomes of the claims and cross-claims. The court considered various principles of equity and common law in relation to interest on charges and costs orders.

The court ruled that interest should be awarded on the $100,000 charged to Whipps from the time of imposition of the charge until the date of judgment. This decision was based on the principle that the party benefiting from the charge should compensate the other party for the delay in payment. The court also made a detailed costs order, taking into account the outcomes of the claims and cross-claims, as well as the conduct of the parties throughout the litigation. The court determined that the plaintiff should bear a significant portion of the costs due to the unsuccessful nature of their primary claim and their conduct in the proceedings.

In summary, the court awarded interest on the $100,000 charged to Whipps and made a comprehensive costs order, reflecting the outcomes of the claims and cross-claims, as well as the conduct of the parties during the litigation.

Orders