TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd

[2020] NTSC 15

CITATION: TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd [2020] NTSC 15

PARTIES:  TTG NOMINEES PTY LTD
  (ACN 163 811 345)

v

AILERON PASTORAL HOLDINGS PTY LTD (ACN 605 457 421)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:AS 9 of 2016 (21657966)

DELIVERED:  15 April 2020

HEARING DATE:  On the papers

JUDGMENT OF:  Mildren AJ

CATCHWORDS:

COMMERCIAL TENANCY - Interest payable on damages – Interest

payable on rent

COSTS – Party/Party – Bases of quantification

Supreme Court Act 1979 (NT) s 84, Federal Court of Australia Act 1976 (Cth) s 52

Cullen v Trappell (1979-1980) 146 CLR 1, referred to

Sherwin v Commens [2008] NTSC 45. Acer Forester Pty Ltd v Complete Crane Hire (NT) Pty Ltd [2013] NTSC 62, Ceccon Transport Pty Ltd v Tomazos Group Pty Ltd (No.2) [2017] NTSC 55, TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd [2020] NTSC 4, applied

REPRESENTATION:

Counsel:

Plaintiff:N Floreani

Defendant:Nil appearance

Solicitors:

Plaintiff:Bowden McCormack

Defendant:Nil appearance

Judgment category classification:    B

Judgment ID Number:  Mil20561

Number of pages:  5

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd [2020] NTSC 15

No. AS 9 of 2016 (21657966)

BETWEEN:

TTG NOMINEES PTY LTD
(ACN 163 811 345)

AND:

AILERON PASTORAL HOLDINGS PTY LTD
(ACN 605 457 421)

CORAM:    MILDREN AJ

REASONS FOR JUDGMENT

(Delivered 15 April 2020)

1. On 31 January 2020 judgment was delivered for the plaintiff in the sum of $454,155.25 with interest and costs to be determined.

Interest

1. The plaintiff claims interest on the rent due and the damages awarded pursuant to s 84 (1) of the Supreme Court Act 1979 (NT). The Court has a discretion to allow interest at ordinary commercial rates. It was open to the plaintiff to call evidence about relevant commercial interest rates, but it has elected not to do so. In the absence of such evidence, the practice is to apply the rates from time to time applicable to post judgment interest[1]. Under Supreme Court Rule 59.02(3), the rate of interest fixed for post judgment interest is the rate of interest fixed for s 52(2)(a) of the Federal Court of Australia Act 1976 (Cth). Section 84(2) of the Supreme CourtAct 1979 (NT) expressly forbids the award of interest on interest.

2. The plaintiff has calculated the total award of interest to amount to $40,535.54. The calculation is in two parts. First, the plaintiff has calculated interest on the unpaid rent of $33,333.33 at $5.02 per day for 975 days totalling $4,894.50. I see no difficulty with that calculation, nor with the rate of interest claimed. The second calculation is calculated from 19 July 2017 until the date of judgment on 31 January 2020, a period of 562 days at an average rate of 5.5% or $63.42 per day. The resultant sum of $35,642.04 is mathematically correct. Again the rate of interest claimed seems fair and reasonable and consistent with the authorities.  The date of 19 July 2017 is taken as the starting point because the plaintiff says that this is the date that the damages crystallised[2]. Technically the plaintiff may well have been entitled to claim interest on the damages during the period from when the damages first started to arise, ie from 1 July 2016 to 19 July 2017, in which case the rate of interest for that period would be halved in accordance with the decision of the High Court in Cullen v Trappell[3] but as the plaintiff has not claimed this, I do not have to consider it.

3. Accordingly I award interest to the date of judgment in the amount claimed, namely $40,535.54.

Costs

1. The plaintiff has been successful in these proceedings. It seeks an order for costs on the standard basis from 13 December 2013 when the Writ was filed until 27 June 2019, the day after an offer pursuant to Rule 26 of the Supreme Court Rules was filed and served. Thereafter, the plaintiff seeks indemnity costs as the amount of the judgment obtained exceeded the amount of the offer made.

2. Rule 26.08 (2) formerly provided that where the plaintiff recovers more than the amount of the offer, the plaintiff was entitled to an order that the defendant pay the plaintiff’s costs on an indemnity basis, unless the Court otherwise ordered. Rule 26.08 was repealed and replaced by a new Rule (Rule 26.07) which came into effect on 14 March 2018 which provides only that the Court may take this into account in considering the exercise of its discretion as to costs under
   Rule 63.03.  Rule 63.03 (1) provides that “subject to these Rules and any other law in force in the Territory, the costs of a proceeding are in the discretion of the Court”. Rule 63.29 (1) provides that “subject to this Order, the Court may order that costs be taxed on an indemnity basis”.

3. The policy of the present Rules is to confer a wide discretion on the Court as to whether or not to order indemnity costs.

4. The purpose of Order 26 of the Rules relating to the filing of offers of compromise is to encourage the parties to settle their disputes without incurring unnecessary costs. Rule 26.03 provides that an offer may be limited in the time during which it is open to be accepted, but the time for acceptance of the offer must be a reasonable one, and in any event, not less than 14 days. The offer made in this case did not provide for a time limit, and therefore remained open until judgment was delivered.

5. The offer made was for $400,000 inclusive of interest and costs. Of that sum $60,000 related to costs and interest. Clearly, as the plaintiff has recovered judgment for an amount of $454,155.25, plus interest, the offer made was a very reasonable one.

6. In my opinion, the offer is one which the defendant should have accepted. I know of no reason to deprive the plaintiff of any of its costs. I consider that a reasonable time for the defendant to have considered its position would have been one month from the date of the offer. In the exercise of my discretion I order:

   1.That the defendant is to pay the plaintiff’s costs to be taxed on the standard basis from 13 December 2016 to 27 July 2019; and

   2.Therefrom on an indemnity basis.

Formal Orders

1. 1.     Judgment is entered for the plaintiff for the sum of $494,690.79 for unpaid rent, damages and interest.

   2.The defendant is to pay the plaintiff’s costs to be taxed on the standard basis from 13 December 2016 to 27 July 2019 and therefrom on an indemnity basis.

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[1]      Sherwin v Commens [2008] NTSC 45 at [67]-[68] per Southwood J; Acer Forester Pty Ltd v Complete CraneHire (NT) Pty Ltd [2013] NTSC 62 at [51] per Kelly J; Ceccon Transport Pty Ltd v TomazosGroup Pty Ltd (No.2) [2017] NTSC 55 at [89]-[91] per Hiley J.

[2]      See TTG Nominees Pty Ltd v Aileron Pastoral Holdings Pty Ltd [2020] NTSC 4 at [66].

[3] (1979-1980) 146 CLR 1 at 19 per Gibbs J (Stephen, Mason, Murphy and Wilson JJ concurring).