Togher and Anor v Alexander and Ors (No.3)

[2019] NSWDC 280

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Togher & Anor v Alexander & Ors (No.3) [2019] NSWDC 280
Hearing dates:	On the papers
Date of orders:	24 June 2019
Decision date:	24 June 2019
Jurisdiction:	Civil
Before:	Abadee DCJ
Decision:	See paragraph 39.
Catchwords:	JUDGMENTS AND ORDERS – pre-judgment interest – discretion to order – time from when post-judgment interest runs – calculation of pre-judgement interest.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Wrongs Act 1958 (Vic)
Cases Cited:	Cachia v Hanes (1994) 179 CLR 403
Category:	Consequential orders (other than Costs)
Parties:	Mr Alexander (Claimant) Mr McClure (First Cross-Defendant) Mr Harkness (Second Cross-Defendant)
Representation:	In person.
File Number(s):	2017/166111
Publication restriction:	Nil

Judgment

Procedural background

1. On 4 June 2019 I published my reasons for judgment and invited the parties to bring in short minutes of order to give effect to those reasons (Togher & Anor v Alexander & Ors (No.2)[2019] NSWDC 221 at [397]). Specifically, I directed that Mr Alexander had 7 days to submit short minutes (being 11 June) and cross-respondents to his claim had a further 3 days to submit short minutes (being 14 June).

2. I indicated in those reasons my view that the orders should comprise that judgment should be given for Mr Alexander on his cross-claim (filed on 21 December 2017) for the sum of $80,026.97 with interest, and that the second cross-claim of Mr Harkness (and Mr Graeme Peters) (dated 13 April 2018) should be dismissed.

3. From thereafter, even making allowances for the unrepresented status of the litigants, it should have been a short straightforward matter to agree to short minutes reflecting the reasons for judgment (even if the litigants did not agree with the reasons for judgment). Absent anything exceptional, 10 days (in the aggregate) was sufficient time for the parties to agree to, if not delineate the points of difference, on what the dispositive orders should be since, objectively speaking, the real issue was the amount of interest that Mr Alexander should recover on his claim. In this regard, the Court’s own website provides a means to parties, and their lawyers, to calculate interest on judgments ( But consistently with the way that the trial and, indeed the litigation generally, was conducted, there was no agreement between the litigants on the orders disposing of the proceeding; notwithstanding the clear indications provided by my reasons for judgment as to what those orders should be.

4. I received proposed short minutes of order from Mr Alexander (who, whilst overseas after judgment had been delivered, had sought an extension of time) (7 June) and objections to those short minutes from Mr McClure and Mr Harkness (jointly) (on 19 June), who sought and were granted an extension of time.

Ms Hancock’s position

5. Then on 18 June, I received a request for an extension of time from Ms Brownyn Hancock, who had been joined as a cross-respondent during the trial and to whom judgment and post-judgment correspondence had been sent (using her email address details supplied to my Associate from Mr Harkness).

6. On 18 June, Ms Hancock said she had read an email about short minutes of order (thereby confirming the correctness of the email address to whom the messages had been directed to her). She sought a further extension (another 14 days – being 2 July) to enable her to consult with Mr Harkness, regarding objections to Mr Alexander’s short minutes and to obtain legal advice. No indication had been provided to explain Ms Hancock’s delay in waiting until 18 June to make such request. I might also add that since her joinder as a cross-respondent, she made no appearance at the trial (despite Mr McClure and Mr Harkness being directed by the Court to notify her of my pre-disposition, in advance, to join her, and all other SOCIA Church committee members at the time, as cross-respondents to Mr Alexander’s claim). I infer that she was content to allow Mr McClure and Mr Harkness to represent her interests in their common defence to Mr Alexander’s cross-claim. That inference is re-inforced by the reference in her email of 18 June to a need to consult Mr Harkness.

7. On 19 June, a message was sent by my Associate to Ms Hancock indicating that notwithstanding that the time had passed for her to submit contrary orders to Mr Alexander, I was prepared to grant her an extension of time, until 21 June, but suggested that Ms Hancock consider whether – at least in relation to order disposing of the proceeding – her interests materially varied from those of Mr McClure and Mr Harkness.

8. On 20 June, Ms Hancock renewed her request for an extension of time, although this time for a shorter period (28 June). Aside from querying the circumstances of how the Court obtained her email address, again, she did not provide any explanation for her delay in seeking an extension of time.

9. Later on the same day, my Associate sent an email message to Ms Hancock reciting much of the above background and indicating my preliminary view that her interests, in relation to the dispositive orders of the proceeding did not materially diverge from Mr McClure and Mr Harkness’ interests and rejecting her application for an extension of time. I reminded her of her obligations, as a party, to facilitate case management objects of the proceeding, referred to in ss 56-60 of the Civil Procedure Act (including, within s 59, the elimination of delay).

10. In my view, having regard to:

• The time that has already passed since reasons for judgment were delivered (now nearly 3 weeks);

• The circumstance that Ms Hancock has now had the benefit of the 3- day period of response that the Court provided to all cross-respondents to respond to Mr Alexander’s short minutes provided for in the reasons for judgment;

• The warnings that all active litigants have had, since reasons for judgment had been published on 4 June, about supplying short minutes in a timely fashion (including, specifically, reminders of their obligations under ss 56-60 of the Civil Procedure Act);

• the absence of explanation for Ms Hancock’s lack of activity, in terms of responding to Mr Alexander’s proposed short minutes, since judgment had been delivered,

• the circumstance that her interests in respect to the dispositive orders in no material way diverge from those of Mr McClure and Mr Harkness, and, moreover, her ‘closeness’ to Mr Harkness (who, she said, she wished to consult in her email of 18 June)

• the relative simplicity (even for unrepresented litigants) of the task for them to craft short minutes to reflect the reasons for judgment, given that:

• I had identified my provisional view as to what those orders would be;

• my view that the real issue in dispute is the quantum of Mr Alexander’s interest claim; and

• the public accessibility, through the Court’s website, of information as to how interest on judgments could be calculated;

• The even greater simplicity of the task of Ms Hancock to submit orders to the contrary (if she wished) in response to those proposed by Mr Alexander;

• The fact of her observation of short minutes proposed by Mr Alexander, and Mr McClure and Mr Harkness, respectively; and

• Ms Hancock’s obligation, since she was joined, to assist the Court to achieve the just, quick and cheap disposal of issues – and more specifically, to minimize or eliminate unnecessary delay;

• Further delay in the making of dispositive orders will be to the prejudice of Mr McClure and Mr Harkness (and other cross-respondents to Mr Alexander’s cross-claim) in view of the on-going interest that accrues until orders are made that give effect to the reasons for judgment;

• The Court’s desire to dispose of the proceeding promptly, rather than linger on, so that its time and resources can be directed to the interests of other litigants and other cases

Ms Hancock has been afforded reasonable opportunity to address the orders that the Court should make to reflect my reasons for judgment of 4 June, such that I am not minded to grant further extensions of time.

11. I will now address Mr Alexander’s proposed short minutes and the joint response of Mr McClure and Mr Harkness. For this purpose I will assume, in Ms Hancock’s favour, that the responses of Mr McClure and Mr Harkness reflect her position.

Mr Alexander’s short minutes

12. Mr Alexander’s short minutes propose that the following orders be made:

1. Judgment for the first cross-claimant (to the first cross-claim filed on 21 December 2017 for the sum of $86,648.38

2. The second cross-claim filed on 13 April 2018 is dismissed

3. Exhibits to be returned within 28 days.

13. In an explanatory note in his proposed short minutes, Mr Alexander says that the judgment sum is made up of the principal judgment sum ($80,026.97) referred to in my reasons for judgment, plus interest in the amount of $6,621.41.

14. Annexed to his short minutes was a document by which Mr Alexander calculated his interest. The document showed that Mr Alexander’s calculations of his total sum for interest of $6,621.41 as being the aggregate of sums for (a) pre-judgment interest (calculated from the date the proceeding commenced (21 December 2017) to the date of my reasons for judgment (4 June 2019) ($6,391.20); and (b) post-judgment interest (calculated from 4 June 2019 to 18 June 2019) ($230.21).

Mr McClure’s and Mr Harkness’ submissions

15. Mr McClure and Mr Harkness indicated, at the outset, that they “object(ed) to and (did) not consent” to my judgment. That is no proper basis for objecting to orders giving effect to the reasons for that judgment and this point may readily be put aside.

16. They did not object to the arithmetical basis for Mr Alexander’s interest calculations. But they objected, in principle, to an order for interest.

17. It is correct to say that Mr Alexander has no right to interest. Rather, the Court has the discretion to order interest, under the Civil Procedure Act, in the exercise of its discretion. Ordinarily, though, successful plaintiffs who obtain a monetary judgment will be entitled to recover interest.

18. As I understood the submissions of Mr McClure and Mr Harkness, their objections were centred on three grounds.

19. First, the existence (and terms) of the verbal arrangement I had found was entered into in March 2016 could not be characterised as commercial, but was rather ‘not for profit’, and there was no agreement that if the contract was breached, any interest would follow. That being so, if the contract was breached, as I found that it was, there should be no payment of interest arising from the breach.

20. Secondly, because the promise by the cross-defendants was to facilitate the achievement of a Gala Performance on New Year’s Eve (31 December 2016) and that purpose was actually fulfilled, there was no damage to Mr Alexander’s reputation and it would be unfair to penalize, by an order for interest, the persons who assisted Mr Alexander to fulfil that objective.

21. Thirdly, any damage arose through Ticketek’s conduct by its failure to make tickets available for sale and it was Ticketek who should have been joined; not Mr Harkness and Mr McClure (or, I might add – though it was not put by them in these terms - the other committee members of SOCIA Church or Grace Missions who I ordered to be also joined).

22. A separate submission made by Mr Harkness and Mr McClure is that the Court’s orders should expressly provide for an order that no costs be awarded to Mr Alexander.

Consideration

Entitlement to interest

23. Subject to their point about costs, the only serious dispute to the orders proposed by Mr Alexander concerned his claim for interest. In this regard, I will deal, firstly, with the objections to an award of interest. I will then deal with quantum of the interest claim.

24. There is no substance to any of the objections raised by Mr Harkness and Mr McClure.

25. As to the first of them, the objection is premised on a false dichotomy: that charities that have not-for-profit purposes do not enter into commercial arrangements. Although SOCIA Church and Grace Missions were undoubtedly registered charities, this did not mean that they did not seek to involve themselves in commercial transactions. Whatever the shape of the transaction in question here – whether (in March 2016) a New Year’s Eve gala performance or (from May 2016) a Musical festival, the transaction was plainly of a commercial character. It was commercial in character as it involved many musicians, stage performers, publicists, a ticketing agency and the use of prominent Melbourne entertainment venues. Further, and contrary to the submission, as I noted in my reasons for judgment, SOCIA Church and Grace Missions entered into the transaction in large measure for the purpose of obtaining the profits that they believed would be obtained and could thereafter be utilised for the purposes of SOCIA Church. At any rate, the subjective purposes for which SOCIA Church and Grace Missions entered into the transaction as I have found are irrelevant to whether an award of interest should be made. Finally, the award of interest under s 100 of the Civil Procedure Act does not arise here from any breach of an agreement (between Mr Alexander and the SOCIA Church or Grace Missions) that interest should be awarded should that agreement be breached by the other party, but by operation of statute.

26. As to the second objection, the submission misstates my findings. Whilst it is true that the agreement reached in March 2016 was, essentially, to provide for a single New Year’s Eve Gala performance, I found that the agreement was varied in May 2016, so as to provide for a festival throughout January 2017. The joint submissions of Mr McClure and Mr Harkness do not grapple with that finding. A consequence of the finding, which the submissions implicitly acknowledge, is that as the decision was taken (by Grace Missions and/or SOCIA Church) to terminate the underwriting agreement and performances throughout January, Mr Alexander’s reputation amongst musicians, performers and others in the industry did, indeed, suffer. Even if that was not so, interest would still run on the breach of the promise to underwrite; which occurred since even if the promise was limited to a single night’s performance, Mr Alexander was still left out of pocket.

27. The other aspect of this objection was that it was said that an award of interest would penalize those who, it was said, helped fulfil Mr Alexander’s objective. This also misstates the purpose of an award for interest under s 100. That purpose is not to punish, but to compensate the successful plaintiff for being kept out of his or her money. The second objection is rejected.

28. The third objection, which follows closely from the second, is that it was a non-party that was responsible for the damage that Mr Alexander sustained, and not Mr McClure and Mr Harkness. On the latter aspect of this submission, the objection ignores, or perhaps more accurately, cavils with my finding that Grace Missions and SOCIA Church did cause loss and damage to Mr Alexander by the breach of the promise to underwrite. Another answer to this point is that if Mr McClure and Mr Harkness believed that Ticketek contributed to the same loss or damage as their own conduct had caused, it may have been open to them, themselves, to bring a claim for contribution against Ticketek (Wrongs Act 1958 (Vic), ss 23A – 23B) even if (as occurred) Mr Alexander did not bring a claim against Ticketek. That would likely have required them to engage in careful consideration of whether Mr Alexander had a reasonably arguable claim against Ticketek. But in this respect, and notwithstanding their apparent enthusiasm for such claim in early January 2017 when they addressed the gathering of musicians, there was no suggestion by Mr Harkness or Mr McClure, by way of pleading or otherwise, that Mr Alexander had an arguable claim against Ticketek, or, even if he did, that this may relieve SOCIA Church and Grace Missions from liability for their own breach of contract. In any event, the circumstance that Mr Alexander might have had a claim against some other entity which he did not sue is not a circumstance that disqualifies him from a claim for interest for a breach of contract by SOCIA Church and Grace Missions.

Quantum

29. As indicated, Mr Harkness made no submissions about the quantum claimed by Mr Alexander.

30. As I have also indicated, that claim was divided in Mr Alexander’s short minutes into the components of claims for pre-judgment interest and post-judgment interest. Such entitlements are regulated, respectively, by ss 100 and 101 of the Civil Procedure Act 2005. A number of points arise.

31. First, no entitlement of Mr Alexander to post-judgment interest has presently crystallized. The point of entitlement only arises from when orders are made to dispose of the proceeding (r 36.4 of the Uniform Civil Procedure Rules). Those orders are made today. Mr Alexander is not therefore entitled to the $230.21 component he put forward in his interest calculations reflecting post-judgment interest.

32. Secondly, by parity of reasoning, however, pre-judgment interest will continue to run until today, the day when the orders are made. The effect of this will be that from the date when reasons for judgment were published (4 June 2019) to today, interest will run but at a lower rate than the rate prescribed for post-judgment interest. Adjusting the rate of interest for the period 4 June to 24 June 2019 to accord with the rate for pre-judgment interest from the commencement date selected by Mr Alexander (21 December 2017) yields the sum of $6,644.93.

33. Thirdly, it appears that Mr Alexander’s pre-judgment interest calculations have commenced from the date of the commencement of the proceeding; whereas s 100(1)(b) indicates that it can run from the date when the cause of action arose which, in this case, was when the contract was breached (and when reputation began to suffer), being in early January 2017. In other words, Mr Alexander’s calculations for this component appear to underestimate his entitlement under s 100.

34. It would not be procedurally fair to the cross-defendants to grant a sum for interest for pre-judgment interest for any longer period than that for which Mr Alexander has claimed in his short minutes. This is all the more so when, on multiple occasions during the trial and sometimes even after the reasons for judgment were published, the parties were invited to seek legal representation to assist them with the protection of their legal interests and when they have had more than adequate period of time to consider the reasons for judgment and to propose orders to give effect to them.

35. In the circumstances, I am only prepared to grant (pre-judgment) interest, pursuant to s 100 of the Civil Procedure Act 2005 (NSW) for the sum of $6,644.93, covering the period from 21 December 2017 to 24 June 2019.

Costs

36. Mr Harkness and Mr McClure submitted that the orders should include an order that no costs are to be awarded to Mr Alexander.

37. Mr Alexander’s cross-claim did seek, as a form of relief, an order for costs. But his proposed short minutes did not. In my view, Mr Alexander was correct not to seek costs in his short minutes. At all times during the proceeding he appeared in person, without retaining a solicitor to act on his behalf for the litigation. That being so, he would not be entitled to any order for professional legal costs as recompense for work done in the preparation of his case (Cachia v Hanes (1994) 179 CLR 403 at 410-15).

38. In circumstances where Mr Alexander did not propose, in his short minutes, that he be entitled to costs, it is unnecessary, and of no utility, for the Court to make any order to the effect that he is not entitled to costs. That will, in any event, be the effect of the orders I make.

ORDERS

39. For the above reasons, I make the following orders:

1. Judgment for the cross-claimant on the first cross-claim (filed 21 December 2017) for the sum of $86,671.90.

2. The second cross-claim (filed on 13 April 2018) is dismissed.

3. Exhibits are to be returned within 28 days.

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Amendments

25 June 2019 - Addition of website link in paragraph 3.

Decision last updated: 25 June 2019