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Stevens v Spotless Management Services Pty Ltd (No 2)

Stevens v Spotless Management Services Pty Ltd (No 2)

Case [2016] VSCA 311 12 December 2016

Interest

Costs

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0016

ANTHONY STEVENS	Appellant
v
SPOTLESS MANAGEMENT SERVICES PTY LTD [NO 2]	First Respondent

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JUDGES:	KYROU and McLEISH JJA and ELLIOTT AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 311
JUDGMENT APPEALED FROM:	[2015] VSC 746 (Digby J)

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PRACTICE AND PROCEDURE – Interest – Whether debt payable ‘by virtue of some written instrument’ – Whether interest calculated on pre- or post-tax judgment sum – Hodgson v Amcor Ltd [No 9] [2012] VSC 205, followed – Supreme Court Act 1986 s 58.

COSTS – Trial – Appellant made offers of compromise during course of proceeding – Whether offers ‘of a genuine compromise’ – Gamboni v Bendigo and Adelaide Bank Ltd [2013] VSCA 282, applied – Whether court should ‘otherwise order’ and order payment of costs on ordinarily applicable basis after date of offer – Whether reasonableness of rejection of offer is critical question as to whether court should ‘otherwise order’ – Nakos v Serdaris [2016] VSC 179, approved – Supreme Court (General Civil Procedure) Rules 2005 r 26.08.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N J O’Bryan AM SC with Mr J B McDougall	A J Macken & Co
For the First Respondent	Mr P J Jopling AM QC with Mr E A Gisonda	Rigby Cooke

KYROU JA
McLEISH JA
ELLIOTT AJA:

The Court delivered judgment allowing the appeal in this matter on 30 November 2016.[1] The parties were invited to file written submissions addressing the questions of interest and costs. The Court having now received those submissions, these reasons deal with those questions.
[1]Stevens v Spotless Management Services Pty Ltd [2016] VSCA 299.

Interest

The appellant seeks an order for the payment of interest pursuant to s 58 of the Supreme Court Act 1986 from 25 October 2012, being the date that the appellant’s employment with the defendant was terminated.[2] He contends that interest should run from 25 October because the debt was payable pursuant to a written instrument, being the Manual Salary Calculation, and at a date certain, being the date his employment was terminated. He also submits that the agreement struck by the parties on 17 September established an obligation on the respondent to make payment by 25 October, such that a further written demand was unnecessary.
[2]See ibid [77].

In the alternative, the appellant submits that interest should run either from 8 November 2012 or 19 November 2012, being the dates on which letters were sent by the appellant’s solicitors to Dixon on behalf of the respondent.

The respondent concedes that an order under s 58 ought to be made, but contends that interest should only accrue from 19 November 2012, or alternatively 8 November 2012. It submits that the principal sum was not due ‘by virtue of some written instrument’, so that interest only accrues ‘from the time when demand of payment was made’.[3]…

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 Stevens v Spotless Management Services Pty Ltd (No 2)

Details

AGLC: Stevens v Spotless Management Services Pty Ltd (No 2) [2016] VSCA 311
Case: [2016] VSCA 311
Decision Date: 12 December 2016

CaseChat Overview and Summary

In the matter of Stevens v Spotless Management Services Pty Ltd (No 2), the dispute arose from the calculation of interest on a judgment sum. The case was heard in the Supreme Court of Victoria. The primary focus was on determining whether interest should be calculated on the pre-tax or post-tax judgment sum, in light of the statutory provisions and prior case law. Additionally, the case examined the court's discretion in awarding costs, particularly in relation to offers of compromise made by the appellant during the proceedings.

The legal issues presented to the court included whether the debt was payable "by virtue of some written instrument" as required by section 58 of the Supreme Court Act 1986, and whether the interest should be calculated on the pre-tax or post-tax sum in accordance with the decision in Hodgson v Amcor Ltd [No 9]. The court also needed to determine if the appellant's offers of compromise were genuine and if the court should order costs to be paid on the ordinarily applicable basis after the date of the offer. The court examined these issues in the context of relevant case law and procedural rules.

The court followed the decision in Hodgson v Amcor Ltd, holding that the interest should be calculated on the pre-tax judgment sum. It also found that the appellant's offers of compromise were genuine, and the reasonableness of rejecting these offers was a critical factor in determining whether the court should otherwise order costs to be paid. The court approved the approach in Nakos v Serdaris, emphasising that the rejection of a genuine offer could lead to costs being awarded on the ordinarily applicable basis. The court exercised its discretion under the Supreme Court (General Civil Procedure) Rules 2005, r 26.08, to order costs accordingly.

The final orders of the court included an order that interest on the judgment sum was to be calculated on the pre-tax amount, and that costs were to be awarded on the ordinarily applicable basis from the date of the appellant's genuine offers of compromise. The court's decision provided clarity on the interpretation of statutory provisions and the court's discretion in awarding costs in light of offers of compromise.

Orders