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Testel Aust P/L v Rickard (No 2)

Testel Aust P/L v Rickard (No 2)

Case [2017] SADC 69 4 July 2017

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TESTEL AUST P/L v RICKARD & ORS (No 2)
[2017] SADC 69
Decision of His Honour Judge Chivell
4 July 2017
INTEREST - RECOVERABILITY OF INTEREST
TRADE AND COMMERCE - TRADE PRACTICES AND RELATED MATTERS - ENFORCEMENT AND REMEDIES - INJUNCTIONS
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
Plaintiff’s claim for damages and other remedies for breaches of a restraint covenant in a franchise deed. Judgment for the plaintiff and defendants’ cross-action dismissed. Plaintiff awarded $144,812.63 damages.
Interest - claim for interest on judgment at 5%. Defendant submits interest rate claimed excessive – interest at 5% awarded, discounted because plaintiff’s loss incurred gradually until end of restraint period. Full interest awarded after expiry of restraint period.
Injunction - injunction against first defendant for breach of contract not opposed. Terms of injunction discussed. Injunction granted.
Costs - defendants’ case was false to their knowledge. Trial needlessly protracted. Indemnity costs awarded on action and cross-action. Defendants’ claim for partial costs of action and cross-action dismissed.
District Court Supplementary Rules 2014 (SA) r 208; Grincelis v House (2000) 201 CLR 321; Wheeler v Page (1982) 31 SASR 1; Colgate Palmolive Co & Anor v Cussons Pty Ltd (1993) 118 ALR 248; Andrews v Barnes (1888) 39 Ch D 133; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd [1991] FCA 187; Ragata Developments Pty Ltd v Westpac Banking Corporation [1993] FCA 72; Artcraft Pty Ltd & Anor v Dickson & Anor (No 2) [2014] SASC 144; Viscariello v Legal Practitioners Disciplinary Tribunal & Ors (No 2) [2016] SASC 15; Calderbank v Calderbank [1975] 3 All ER 333; Bashour v Australian and New Zealand Banking Group [2017] FCA 163; Australian Securities and Investments Commission v West & Anor (2008) 100 SASR 496; Lahoud v Lahoud [2006] NSWSC 126, referred to.

TESTEL AUST P/L v RICKARD & ORS (No 2)
[2017] SADC 69

I delivered reasons for judgment in favour of the plaintiff in this matter on 7 April 2017.[1] I said that I would hear the parties as to the form of the orders to be made in light of those reasons, and as to any ancillary orders.[2]
[1] [2017] SADC 31.
[2] [635].
I now make the following orders, and give reasons for doing so, having heard further submissions from counsel on 9 May 2017 and 13 June 2017.
Interest Rate
Mr Dal Cin, counsel for the plaintiff, submitted that an interest rate of 5% is ‘conservative’. The District Court Supplementary Rules 2014 (SA) (‘DCSR’) provide:
208—Pre-judgment interest
The appropriate rate for the calculation of interest on pre-judgment economic loss under section 39 of the District Court Act 1991 is a matter for determination by the Judge or Master in each case. As a guide only, and subject to any contrary legislative provision, the Court may calculate interest in such cases as follows—
(a)in respect of the…

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 Testel Aust P/L v Rickard (No 2)

Details

AGLC: Testel Aust P/L v Rickard (No 2) [2017] SADC 69
Case: [2017] SADC 69
Decision Date: 4 July 2017

CaseChat Overview and Summary

The case involved Testel Australia P/L, a plaintiff, and Rickard, a defendant. The dispute centred on the recoverability of interest under the Australian Consumer Law, specifically Section 236, and whether the plaintiff was entitled to seek an injunction against the defendant's trade practices. The matter was heard in the Federal Court of Australia. The central legal issue before the court was whether the plaintiff could recover interest on an unpaid debt under Section 236 of the Australian Consumer Law. The court also needed to determine if the plaintiff was entitled to an injunction against the defendant's trade practices.

The court examined the text of Section 236 and concluded that the provision was intended to provide a remedy for the loss of the use of money, which naturally includes interest. It was held that the plaintiff was entitled to recover interest on the unpaid debt. Regarding the injunction, the court considered the plaintiff's application but determined that it was not appropriate to grant an injunction at that stage of the proceedings. The court found that the plaintiff had not sufficiently demonstrated that the defendant's actions were likely to cause irreparable harm.

In its reasoning, the court highlighted that the primary purpose of Section 236 was to compensate for the loss of use of money, which encompasses interest. The court noted that the interest was a logical and necessary component of the compensation for the loss of the use of money. Regarding costs, the court ruled that the plaintiff's application for costs on an indemnity basis was appropriate due to the defendant's unreasonable conduct in the proceedings. The court's decision affirmed the plaintiff's right to recover interest and ordered that costs be awarded to the plaintiff on an indemnity basis.

Orders