Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd and Anor (No.6)

[2010] FMCA 418

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SWEVENINGS PTY LTD v FERGUSON CONSOLIDATED HOLDINGS PTY LTD & ANOR (No.6) [2010] FMCA 418

PRACTICE AND PROCEDURE – Final declarations and orders – damages – assessment of costs – interest.

Federal Court Rules (Cth), O.35 r.8, O.62, Schedule 2
Federal Magistrates Act 1999 (Cth), ss.76(3), 77(2) and (3), 79(2) and (3)
Federal Magistrates Court Rules 2001 (Cth), rr.21.02(2)(b) & (c), 21.11(2)(b), 26.01, Schedule 1
Trade Practices Act 1974 (Cth), ss.51AD, 52, 82

Ho v Regulator Australia Pty Ltd & Anor (No. 2) [2004] FMCA 402
Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 2) [2008] FMCA 1336
McBride v State of Victoria (No. 2) [2003] FMCA 313
Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250
Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582
Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 5) [2010] FMCA 63

Applicant: SWEVENINGS PTY LTD

First Respondent: FERGUSON CONSOLIDATED HOLDINGS PTY LTD

Second Respondent: ERIC JOHN FERGUSON

First Cross-Claimant: FERGUSON CONSOLIDATED HOLDINGS PTY LTD

Second Cross-Claimant: ERIC JOHN FERGUSON

Cross-Respondent: SWEVENINGS PTY LTD

File Number: PEG 45 of 2008

Judgment of: Lucev FM

Hearing date: 20 April 2010

Date of Last Submission: 20 April 2010

Delivered at: Perth

Delivered on: 18 June 2010

REPRESENTATION

Counsel for the Applicant: Mr J O Hosgood with Ms M L Coulson

Solicitors for the Applicant: Mackinlays

For the First Respondent: Mr E J Ferguson (by leave)

For the Second Respondent: In Person

DECLARATIONS AND ORDERS

The Court orders and declares that:

1. (a) The First Respondent has contravened ss.51AD and 52 of the Trade Practices Act 1974 (Cth);

   (b)The Second Respondent was involved in the contravention by the First Respondent of ss.51AD and 52 of the Trade Practices Act 1974 (Cth); and

   (c)The First and Second Respondents are jointly and severally liable for payment of damages, interests, costs and disbursements ordered to be paid by the “Respondents” under these orders.

2. The Respondents pay to the Applicant, by way of damages, pursuant to s.82 of the Trade Practices Act 1974 (Cth), $145,842, by 16 July 2010.

3. The Respondents pay to the Applicant, by way of interest on the damages, pursuant to s.76(3) of the Federal Magistrates Act 1999 (Cth), $30,000, by 16 July 2010.

4. The Respondents pay to the Applicant, by way of interest on the judgment, pursuant to s.77(2) and (3) of the Federal Magistrates Act 1999 (Cth), and O.35 r.8 of the Federal Court Rules, at the rate of 10.5% per annum from 18 June 2010 until payment.

5. The Cross-Respondent breached the terms of the Midland Licence Agreement, and

   (a)is indebted to the First Cross-Claimant for failure to pay for stock supplied; and

   (b)failed to give the First Cross-Claimant the required notice of termination of the Midland Licence.

6. The Cross-Respondent pay to the First Cross-Claimant, by way of damages for breach of the Midland Licence Agreement, $59,667.10 by 16 July 2010.

7. The Cross-Respondent pay to the First Cross-Claimant, by way of interest on the damages, pursuant to s.76(3) of the Federal Magistrates Act 1999 (Cth), $11,000, by 16 July 2010.

8. The Cross-Respondent pay to the First Cross-Claimant, by way of interest on the judgment, pursuant to s.77(2) and (3) of the Federal Magistrates Act 1999 (Cth), and O.35 r.8 of the Federal Court Rules, at the rate of 10.5% per annum from 18 June 2010 until payment.

9. The Respondents pay to the Applicant costs in the sum of $42,450 by 16 July 2010.

10. The Respondents pay to the Applicant the sum of $20,196.18 for disbursements to be paid by 16 July 2010.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATPERTH

PEG 45 of 2008

SWEVENINGS PTY LTD

Applicant

And

FERGUSON CONSOLIDATED HOLDINGS PTY LTD

First Respondent

ERIC JOHN FERGUSON

Second Respondent

FERGUSON CONSOLIDATED HOLDINGS PTY LTD

First Cross-Claimant

ERIC JOHN FERGUSON

Second Cross-Claimant

SWEVENINGS PTY LTD

Cross-Respondent

REASONS FOR JUDGMENT

Introduction

1. The Court handed down Reasons for Judgment in this matter on 5 February 2010.[1]

   [1] Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 5) [2010] FMCA 63 (“Swevenings (No. 5)”).

2. The Court found that:

   a)Swevenings’ reliance upon each of the Profit and Loss Representation, the Future Trading Representation, the Trading Stock Representation and the Containers Representation, each of which was misleading and/or deceptive contrary to s.52 of the TP Act, resulted in Swevenings being induced to enter into the Midland Business Purchase Agreement and paying $90,000 more for the goodwill of the Midland Business than it was worth, and thereby suffering loss and damage in that amount;

   b)for essentially the same reason as finding Swevenings was induced to enter into the Midland Business Purchase Agreement by reason of Ferguson Holdings’ misleading and deceptive conduct, Swevenings was also induced to enter into the Cockburn Licence by reason of the same misleading and deceptive conduct. In so doing, it has suffered loss and damage by reason of the payment of $20,000 as the Cockburn Licence fee, and the Court so finds;

   c)the respondents breached s.51AD of the TP Act;

   d)by reason of the respondents’ misleading and deceptive conduct in relation to the Profit and Loss Representation, the Future Trading Representation, the Trading Stock Representation and the Containers Representation, and the breach of s.51AD of the TP Act, Swevenings was induced to purchase the Midland Business and to incur trading losses during the period from 15 April 2005 to 27 October 2005;

   e)the trading losses for the Midland Business ought to be calculated on the basis of wages and superannuation for 2.6 employees;

   f)the respondents are not liable for any losses incurred by Swevenings in relation to the Rockingham Business;

   g)the loss and damage suffered by Swevenings is as follows:

   (i)the overpayment of goodwill in the sum of $90,000;

   (ii)the trading losses in the Midland Business in the period 15 April 2005 to 27 October 2005; and

   (iii)    the payment of $20,000 for the Cockburn licence;

   h)the respondents are jointly and severally liable for Swevenings’ loss and damage;

   i)Swevenings is indebted to Ferguson Holdings in the sum of $57,718.72 for failure to pay for stock supplied;

   j)there was a failure in this case by Swevenings to give notice of termination of the Midland Licence. It follows that any damage by way of loss of profit (being commission on sales) suffered by Ferguson Holdings as a consequence of that failure is limited to that suffered in the 42 days from 8 November 2006.[2]

   [2] Swevenings (No. 5) at para.154 per Lucev FM.

3. The Court did not make declarations and orders at that time but ordered the parties to confer with a view to reaching agreement on final declarations and orders, or declarations and orders reflecting the conclusions reached in Swevenings (No. 5) as set out above.

4. No agreement was reached between the parties, and following a directions hearing on 22 February 2010, the following matters:

   a)the applicant’s Trading Losses in the Midland Business in the period 15 April 2005 to 27 October 2005;

   b)damage by way of Loss of Profit (being commission on sales) suffered by the first respondent in the 42 days from 8 November 2006 as a consequence of the applicant’s failure to give notice of termination of the Midland Licence; and

   c)costs,

   were the subject of a further hearing and submissions on 20 April 2010.

Issues

1. The matters for determination now in issue are:

   a)the applicant’s Trading Losses in the Midland Business in the period 15 April 2005 to 27 October 2005;

   b)the first respondent’s damages by way of Loss of Profit (being commission on sales) for the 42 days from 8 November 2006 as a consequence of the applicant’s failure to give notice of termination of the Midland Licence; and

   c)costs,

   together with the making of final declarations and orders to reflect the Reasons for Judgment in Swevenings (No. 5).

Trading losses in the Midland Business

1. The first and second respondents were found jointly and severally liable for the loss and damage suffered by the applicant, including Trading Losses in the Midland Business in the period 15 April 2005 to 27 October 2005.[3] The Court determined that the Trading Losses for the Midland Business ought to be calculated on the basis of wages and superannuation for 2.6 employees.[4]

   [3] Swevenings (No. 5) at para.154(d) and (g) per Lucev FM.

   [4] Swevenings (No. 5) at para.154(e) per Lucev FM.

2. On the basis of the expert evidence of Mr Douglas-Brown, which the Court accepts, the cost of wages and superannuation for 2.6 full-time equivalent staff is $8,125 per calendar month. That constitutes $7,454 in wages and $671 in superannuation. The Court accepts the calculation of Trading Losses set out in Mr Douglas-Brown’s supplementary affidavit sworn 15 March 2010, and on that basis, finds that the Trading Losses incurred by the applicant from 15 April 2005 to 27 October 2005 in relation to the Midland Business amount to $35,842.

First respondent’s Loss of Profit (being commission on sales) from 8 November 2006

1. The evidence in relation to this issue was that during the financial year ending 30 June 2006 Ferguson Holdings was paid $16,933.43 under the Midland Licence for commission on sales of stock supplied to Swevenings to operate the Midland Business.[5] That was the evidence that the Court accepted concerning amounts paid under the Midland Licence. On that basis, converted to a daily rate ($16,933.43 divided by 365) the amount is $46.39 a day. For the 42 days for which Swevenings must pay damages, the damages amount to $1,948.38.

Costs

[5] Swevenings (No. 5) at para.146 per Lucev FM.

Jurisdiction and power to award costs

1. The Court’s jurisdiction and power to award costs in general federal law proceedings (that is, not family law or child support proceedings) is set out in s.79(2) and (3) of the Federal Magistrates Act 1999 (Cth),[6] as follows:

   (2)The Federal Magistrates Court or a Federal Magistrate has jurisdiction to award costs in all proceedings before the Federal Magistrates Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   (3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Magistrates Court or Federal Magistrate.

   [6] “FM Act”.

Source for fixing costs in this Court

1. This Court has recently observed that:

   43.It is clear from a combined reading of:

   a)      the FMC Rules;

   b)      information available on the FMC Website;

   c)      cases decided by the Court; and

   d)     other secondary sources,

   and the Court’s own experience, that it is well established and well known that the primary source used for fixing costs in general federal law proceedings (other than, arguably, in bankruptcy) in this Court is the event-based scale in Schedule 1 of the FMC Rules. Whilst there is discretion to depart from the event-based scale, that is the exception rather than the norm. The event-based scale under Schedule 1 of the FMC Rules exists to provide simplicity and certainty in determining costs, such that a lawyer attending to take final judgment ought to have been able to calculate the exact costs, in the vast majority of cases.[7]

   [7] Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No. 3) [2010] FMCA 250 at para.43 per Lucev FM (footnotes omitted).

2. Generally speaking, costs follow the event in general federal law proceedings in this Court,[8] and a successful party is entitled to recover their costs according to the event-based scale set out in Schedule 1 to the FMC Rules. Where a party has been successful in part and unsuccessful in part the Court may apportion liability for costs on a percentage basis, and in so doing sets the method by which costs are to be calculated looking at the outcome in substance, rather than attempting to artificially calculate costs on a purely mathematical basis.[9]

   [8] Ibrahim v Highline and Ibrahim v Worken Pty Ltd (No. 2) [2008] FMCA 1336 at para.6 per Lucev FM.

   [9] FMC Rules, r.21.02(2)(b); Ho v Regulator Australia Pty Ltd & Anor (No. 2) [2004] FMCA 402 at para.17 per Driver FM; McBride v State of Victoria (No. 2) [2003] FMCA 313 at paras.8-9 per McInnis FM.

Assessment of costs – percentage estimate

1. The applicant’s claim was essentially divided into four parts, as summarised in the applicant’s submissions on costs as follows:

   a)the difference between the price paid and the market value of the Midland Business;

   b)the difference between the price paid and the market value of the Cockburn Licence (which was subsequently surrendered for a licence to open a business in Rockingham);

   c)subsequent Trading Losses for the Midland Business from settlement in April 2005 until October 2006; and

   d)Trading Losses for the Rockingham Business from November 2005 until October 2006.

2. The Court accepts the applicant’s submission that it was wholly successful in relation to paragraphs (a) and (b) above, partially successful regarding paragraph (c), in relation to which it was awarded trading losses for six months, and wholly unsuccessful regarding part (d).

3. The applicant claimed damages of $247,848,[10] and based on the Court’s Reasons for Judgment in Swevenings (No. 5) and these Reasons for Judgment will recover damages in the sum of $145,842.

   [10] Further Amended Statement of Claim, filed 21 October 2008, para.69.

4. The vast majority of the hearing time was related to issues associated with the applicant’s claim, which was bitterly, and sometimes unjustifiably, opposed by the first and second respondents. Having regard to:

   a)the nature of the claim;

   b)the degree to which the applicant was successful in relation to that claim;

   c)the manner in which the hearing was conducted, and in particular the manner in which the first and second respondents opposed the claim; and

   d)the outcome as to damages quantum,

   the Court considers that the applicant was substantially successful in relation to the vast majority of the hearing which related to issues associated with the applicant’s claim.

5. In relation to the cross-claim there was an early concession by the applicant that it had failed to pay for stock supplied as and when payment fell due, and the evidence led by the first and second respondents with respect to value was not challenged, nor was Mr Ferguson examined at all in relation to the issue.[11]

   [11] Swevenings (No. 5) at para.143 per Lucev FM.

6. In relation to the alleged Loss of Profits by way of commission on sales arising from the failure to give notice of termination of the Midland Licence the only argument was as to the necessity to give notice and the quantum of notice required if it was necessary to give notice, and that was essentially an argument about the construction of the relevant document.

7. In essence, the argument about the cross-claim occupied very little of the total time of the hearing, and the argument was, quite properly, restricted by the applicant’s proper concession on the debt for stock supplied issue, and restricted to an appropriate argument with respect to the Loss of Profit by way of commission on sales. In the circumstances, the first and second respondents ought not recover more than a small amount of the hearing cost relating to the cross-claim.

8. In all the circumstances, the Court, in the exercise of the broad discretion available in respect of costs awards, determines that the first and second respondents ought be liable for 75% of the applicant’s costs in the proceedings.

Assessment of costs - form

1. The applicant says that costs in this matter ought to be taxed under O.62 of the Federal Court Rules.[12] The Court is able to refer a matter for taxation of costs under O.62 of the FC Rules with the scale of costs then being that set out in Schedule 2 to the FC Rules.[13]

   [12] “FC Rules”.

   [13] FMC Rules, rr.21.02(2)(c) and 21.11(2)(b).

2. There is nothing in the circumstances of the matter that, in the Court’s view, warrants taxation of costs under the FC Rules. The matter was one started in the Federal Court, and which the Federal Court transferred to this Court. Although there were numerous interlocutory skirmishes, those skirmishes related more to the first and second respondents’ recalcitrance, ineptitude and unfamiliarity with Court proceedings (more particularly so when unrepresented) than the complexity of the proceedings themselves.

3. The conduct of the witnesses, and the Court’s observations on their credibility, do not – contrary to the submissions of the applicant – provide a basis for taxation of costs under the FC Rules. To the extent that the respondents’ conduct of the matter has resulted in additional expense, whether by reason of delay or conduct or both, the Court has, as indicated above, factored that into its assessment of the degree to which the applicant ought to be awarded a percentage of costs generally.

4. In the circumstances, there ought to be an award of costs on the basis of 75% of the event-based scale in Schedule 1 of the FMC Rules. That reflects the normal course in this Court with respect to the assessment of costs, and there is nothing in the circumstances of this case, for the reasons set out above, that warrants assessment of costs on any other basis, and in particular there is no warrant to refer the matter for taxation of costs under the FC Rules.

5. The applicant is also entitled to:

   a)its costs in the cause of that part of the matter which was conducted in the Federal Court prior to the transfer to this Court on 10 March 2008;[14] and

   b)outstanding reserved costs,

   assessed under the FMC Rules at 75% of the applicable amount.

   [14] Order 3 of the Orders of the Federal Court of 10 March 2008.

6. Bearing in mind that the matter:

   a)did not progress beyond mediation in the Federal Court; and

   b)was ultimately transferred by the Federal Court to this Court,

   the Court will assess all costs in both the Federal Court and this Court, using this Court’s Costs Schedule.

7. As to the vacation of the trial dates in December 2008 the Court observed as follows:

   53. The position of the applicant and what prejudice it suffers must be considered. The applicant was ready for hearing on 28 October 2008. Prejudice then suffered was remedied, if not in whole then certainly in part, by a costs order of $15,000, which the Court is informed (from the Bar table) has been paid. Presumably the applicant remains ready for the December 2008 hearing, nothing having changed in the respondents’ case in the interim. In those circumstances it is difficult to envisage any additional prejudice that might be suffered by the applicant other than what would be expected from the prolongation of the hearing beyond December 2008, and which might not be remedied by an award of costs thrown away, if any.

8. The applicant is entitled to those costs thrown away, assessed in the manner described above.

Assessment of Costs - quantum

1. It is therefore necessary for the Court to assess costs in relation to those matters in relation to which costs have not already been determined.

2. In the exercise of its broad discretion as to costs the Court finds that the applicant is entitled to costs as follows:

Event	Cost	75% of Cost
29/08/06 – Initiating application up to completion of first court date (3 mins)	Lump Sum (“LS”):  $2350 Daily Hearing Fee (“DHF”):    $240 Total (“T”):                $2590	$1942.50
18/10/06 – Short mention (4 mins)	DHF:   $240	$180.00
Mediation – 25/01/07 (30 minutes); 24/05/07 (2 hrs 20 mins); 30/11/07 (30 mins)	LS:   $2465	$1848.75
10/04/07 – Consent Order	Respondent pay applicant’s costs of respondents’ Notice of Motion and costs thrown away (no specific quantification provided by the applicant – assessed on cost for interim hearing) LS:  $1465	$1098.75
06/08/07 – Short mention (10 mins)	DHF:   $240	$180.00
03/09/07 – Consent Order	Costs in the cause (no provision for costs of consent order in Costs Schedule)	$0
11/12/07 – Short mention (10 mins)	DHF:   $240	$180.00
10/03/08 – Consent Order	Costs in the cause (no provision for costs of consent order in Costs Schedule)	$0
Federal Magistrates Court 21/04/08 – Directions (30 mins)	DHF   $240	$180.00
10/06/08 – Directions (10 mins)	DHF:   $240	$180.00
12/08/08 – Consent Order	Costs of respondents’ discontinued application for security for costs otherwise in the cause (no specific quantification provided by the applicant – assessed on cost for interim hearing) LS:   $1465	$1098.75
03/09/08 – Directions hearing on two interlocutory applications (8 mins)	DHF:   $240	$180.00
08/09/08 – Interlocutory Hear (53 mins)	Parties to confer on costs – to be heard at a later date LS:   $1465 DHF:   $880 Advocacy Loading (“AL”):   $440 T:   $2785	$2088.75
24/11/08 and 28/11/08 – Directions / respondents’ Interlocutory Hearing for vacation of hearing dates (35 mins), and Judgment (6 mins)	DHF: (Hearing)          $880 Applicant’s costs thrown away by respondents’ application to vacate trial dates       $9610 DHF: (Judgment)        $240 T:  $10730	$8047.50
22/12/08 – Directions (10 mins)	DHF:   $240	$180.00
27/02/09 – Mediation (3 hrs 35 mins)	LS:   $2465	$1848.75
27/03/09 – Interlocutory Hearing (1 hr)	LS:   $1465 DHF:  $880 AL:  $440 T:   $2785	$2088.75
30/03/09 – Judgment (10 mins)	DHF:  $240	$180.00
03/04/09 – Interlocutory Hearing (33 mins)	LS:   $1465 DHF:   $880 AL:   $440 T:   $2785	$2088.75
06/04/09 – Judgment (10 mins)	DHF:   $240	$180.00
Preparation for final 4 day hearing	LS:  $11280	$8460.00
Final hearing costs	DHF:   $7040 AL:   $3520 T:  $10560	$7920.00
05/02/10 – Judgment (1 min)	DHF  $240	$180.00
22/02/10 – Directions (10 mins)	DHF:   $240	$180.00
20/04/10 – Interlocutory Hearing (35 mins) (costs)	LS:   $1465 DHF:   $880 T:   $2345	$1758.75
18/06/10 – Judgment	DHF  $240	$180.00
Total	$42,450.00

1. The Court therefore finds that the applicant’s costs in this matter are $42,450.00. There will be an order that the respondents pay that amount for which they are jointly and severally liable by 16 July 2010.

2. The Court notes that certain written submissions on costs ordered on 6 April 2009 to be filed were not filed by either the applicant or respondents, and in their absence the Court has had to make a general assessment of the relevant costs in the exercise of its broad discretion.

Disbursements

1. There is a separate claim for disbursements by the applicant, including the costs of the expert witness, Mr Douglas-Brown. As the Court observed, Mr Douglas-Brown’s “evidence was given in a proper and professional manner, and he had command of the materials upon which his analysis was based.”[16] His evidence has been accepted and utilised by the Court both in Swevenings (No. 5) and in the assessment of Trading Losses in these Reasons for Judgment. It is therefore proper that Mr Douglas-Brown’s costs be treated as a disbursement by the applicant to be paid by the respondents, again on the basis that they are jointly and severally liable. The Court does not consider that its order of 28 October 2008 for costs of $15,000 to be paid to the applicant by the respondents includes any disbursements, and therefore does not affect the quantum claimed as a disbursement for Mr Douglas-Brown’s costs. The Court finds that the applicant is entitled to the cost of disbursements as follows:

   [16] Swevenings (No. 5) at para.105 per Lucev FM.

Provider	Description	Amount	75% of Amount
Witness Fees
Mr Douglas-Brown	Expert witness fee	$9,991.30	$7493.48
Mr Douglas-Brown	Expert witness fee	$12,818.30	$9613.73
Other Disbursements
Gracie Collections and Investigations	Service fees	$103.62	$77.72
Hewitt & Lovitt	Photocopying fees	$110.00	$82.50
Court Fees
Federal Court	Application fee	$1532.00	$1149.00
Federal Magistrates Court	Filing fee for an application (application in a case filed 1 September 2008)	$447.00	$335.25
Federal Court	Mediation fee	$735.00	$551.25
Federal Magistrates Court	Mediation fee	$297.00	$222.75
Federal Magistrates Court	Setting Down fee: Hearing commencing 14 April 2009 for 4 days	$894.00	$670.50
Total	$20,196.18

1. There will therefore be an order that the respondents pay the applicant’s disbursements in the sum of $20,196.18, for which they are jointly and severally liable, and that be payable by 16 July 2010.

Interest

1. Section 76(3) of the FM Act provides for interest up to judgment to be given on the basis that there be included in the sum for which judgment is given interest at such rate as the Court thinks fit on the whole or any part of the money for the period between the date when the cause of action arose and the date on which judgment is entered.[17] Alternatively, the Court, without proceeding to calculate interest as set out above may order that there be included in the sum for which judgment is given a lump sum in lieu of any such interest.[18]

   [17] FM Act, s.76(3)(c).

   [18] FM Act, s.76(3)(d)

2. Given that the relevant events occurred between three and half and five years ago in relation to these proceedings the Court has determined that it would be more expedient to determine a lump sum amount of interest up to the time of judgment. In so doing the Court notes that it was not particularly assisted by evidence or submissions as to precisely what rate of interest or amount of interest ought to be awarded by either party. The Court also takes judicial notice of the fact that interest rates were at historic lows for much of the relevant period.

3. In the circumstances set out above the Court will order that the respondents pay the applicant by way of interest up to judgment (on the sum of $145,842) a lump sum of $30,000. There will also be an order that the cross-respondent pay to the first cross-claimant by way of interest on judgment (on the sum of $59,667.10) a lump sum of $11,000.

4. In relation to post-judgment interest s.77(3) of the FM Act provides that interest is payable post-judgment at such rate as is fixed by the FMC Rules, or if the Court thinks in a particular case that the justice of the case so requires, at such lower rate as the Court determines. The FMC Rules provide that the rate of interest is the rate prescribed by the FC Rules.[19] Order 35 r.8 of the FC Rules provides that a judgment debt carries interest at the rate of 10.5% per year unless in a particular case the Court determines that justice requires that a lower rate should be applicable. In the absence of any argument that justice requires that a lower rate be applicable, the Court will award post-judgment interest at the rate prescribed by O.35 r.8 of the FC Rules.

   [19] FMC Rules, r.26.01.

Conclusion re issues

1. The Court has concluded that:

   a)the applicant’s Trading Losses in the Midland Business in the period 15 April 2005 to 27 October 2005 were $35,842;

   b)the first respondent’s Loss of Profit (being commission on sales) for the 42 days from 8 November 2006 as a consequence of the applicant’s failure to give notice of termination of the Midland Licence was $1,948.38; and

   c)the respondents are jointly and severally liable for the applicant’s costs in the sum of $42,450 and disbursements in the sum of $20,196.18.

2. There will be orders reflecting the above conclusions on the issues the subject of these Reasons for Judgment, together with appropriate declarations and orders arising from the Reasons for Judgment in Swevenings (No. 5), plus interest as assessed. All amounts are to be payable by 16 July 2010, and there will be orders accordingly.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  18 June 2010

[15] Swevenings Pty Ltd v Ferguson Consolidated Holdings Pty Ltd & Anor (No. 2) [2008] FMCA 1582 at para.53 per Lucev FM (footnote omitted).