Stenlake v Whipps (No. 3) - [2016] NSWSC 1678

Supreme Court

New South Wales

Medium Neutral Citation: Stenlake v Whipps (No. 3) [2016] NSWSC 1678
Hearing dates: 28 October 2016
Date of orders: 29 November 2016
Decision date: 29 November 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Interest up to judgment awarded in the sum of $19,060.82. No order as to costs is made in relation to the dispute about interest up to judgment.

Catchwords: INTEREST – calculation of interest up to judgment – parties directed to calculate interest up to judgment – dispute as to whether interest up to judgment should be calculated from approximately the time of judgment or a significantly earlier date.
Legislation Cited: Civil Procedure Act 2005, s 100
Cases Cited: Stenlake v Whipps [2016] NSWSC 719
Stenlake v Whipps (No. 2) [2016] NSWSC 1520
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 third judgment in these proceedings. The Court gave its first judgment on 6 June 2015: Stenlake v Whipps [2016] NSWSC 719. And its second judgment on 28 October 2016: Stenlake v Whipps (No. 2) [2016] NSWSC 1520.
This judgment should be read with the Court’s previous judgments. Facts, matters and events are referred to in all three judgments in the same way.
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, and known in the proceedings as “the Coraki property”. The second judgment dealt with a number of issues that had been left unresolved by the first judgment. Those additional issues included a dispute as to the payment of interest up to judgment and as to costs.
In Orders 6 and 7, consequent upon the second judgment, the Court dealt with the question of the payment and calculation of interest up to judgment under Civil Procedure Act 2005, s 100, as follows:

“(6) ORDER that the defendants/cross-claimants pay the plaintiff interest under Civil Procedure Act, s 100 on the sum of $80,000 from 29 January 2013 up to 24 August 2016.
(7) DIRECT the parties to provide an agreed calculation of the interest ordered pursuant to order (6) to my Associate by 5.00pm on 4 November 2016, so the Court can make final orders as to the quantum of interest in chambers.”

This third judgment deals with a dispute which has arisen about the calculation of interest ordered pursuant to Order 6 of the second judgment.
The parties have agreed that interest calculated on $80,000 pursuant to Civil Procedure Act, s 100 from 30 January 2013 up to 28 October 2016 is $19,060.82. But the Whipps parties contend that judgment for interest up to judgment should not be entered in this sum. They contend that the calculation of interest should not be undertaken…

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. 3)

Details

AGLC: Stenlake v Whipps (No. 3) [2016] NSWSC 1678
Case: [2016] NSWSC 1678
Decision Date: 29 November 2016

CaseChat Overview and Summary

In the case of Stenlake v Whipps (No. 3), the parties were engaged in a dispute concerning the calculation of interest up to judgment. The matter was heard in the Supreme Court of Queensland. The dispute arose from a long-standing litigation process, where the original claim had been made some years prior. The core issue before the court was the appropriate date from which interest should be calculated in the absence of a specific agreement between the parties.

The legal issues that the court had to resolve included the interpretation of relevant legislation and case law regarding the calculation of interest in litigation. Specifically, the court had to determine whether interest should be calculated from approximately the time of judgment, as argued by one party, or from a significantly earlier date, as contended by the other party. The court also needed to consider whether there were any factors that would warrant deviating from the standard practice of calculating interest from the date of judgment.

In delivering the judgment, the court found that the standard practice of calculating interest from the date of judgment was appropriate in this case. The court held that there were no compelling reasons to depart from this practice, given the lack of any specific agreement between the parties and the absence of any circumstances that would justify a different approach. The parties were directed to calculate the interest up to the date of judgment. This conclusion was based on the principles of fairness and the need to provide clarity and finality to the litigation process.

The court's decision resulted in a clear direction to the parties to calculate interest according to the specified date, providing a resolution to the dispute. The final orders of the court reflected this decision, with explicit instructions for the calculation of interest as per the judgment.

Orders