Verdell Pty Ltd v F and G Nominees Pty Ltd
[2002] WASC 58 (S)
VERDELL PTY LTD -v- F & G NOMINEES PTY LTD & ANOR [2002] WASC 58 (S)
| Link to Appeal : |
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| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 58 (S) | |
| Case No: | CIV:2726/1991 | 14-16, 19-21 NOVEMBER 2001, 11-12 FEBRUARY & 19 APRIL 2002 | |
| Coram: | WHEELER J | 28/03/02 | |
| 24/04/02 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Orders made | ||
| B | |||
| PDF Version |
| Parties: | VERDELL PTY LTD F & G NOMINEES PTY LTD MALLESONS STEPHEN JAQUES CORSER AND CORSER |
Catchwords: | Turns on own facts |
Legislation: | Commercial Tenancy (Retail Shops) Agreement Act 1985, s 9(1)(3) Supreme Court Act, s 32 |
Case References: | Stanley v Phillips (1966) 115 CLR 471 Van den Bergh v Clever Management Pty Ltd, unreported; SCt of WA; Library No 970319; 20 June 1997 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 24 APRIL 2002 FILE NO/S : CIV 2726 of 1991 BETWEEN : VERDELL PTY LTD
- Plaintiff
AND
F & G NOMINEES PTY LTD
Defendant
MALLESONS STEPHEN JAQUES
Third Party
- Plaintiff
AND
CORSER AND CORSER
Defendant
(Page 2)
Catchwords:
Turns on own facts
Legislation:
Commercial Tenancy (Retail Shops) Agreement Act 1985, s 9(1)(3)
Supreme Court Act, s 32
Result:
Orders made
Category: B
Representation:
CIV 2726 of 1991
Counsel:
Plaintiff : Mr J Gilmour QC & Mr C D Belyea
Defendant : Mr D H Solomon
Third Party : Mr J A Chaney SC
Solicitors:
Plaintiff : Clayton Utz
Defendant : Solomon Brothers
Third Party : Blake Dawson Waldron
(Page 3)
CIV 2294 of 1992
Counsel:
Plaintiff : Mr D H Solomon
Defendant : Mr K J Martin QC & Ms F C E Davis
Solicitors:
Plaintiff : Solomon Brothers
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Stanley v Phillips (1966) 115 CLR 471
Van den Bergh v Clever Management Pty Ltd, unreported; SCt of WA; Library No 970319; 20 June 1997
Case(s) also cited:
Nil
(Page 4)
1 WHEELER J: As I noted in the reasons I delivered on 19 April 2002, there was no agreed calculation of interest in this case. Although counsel for the plaintiff had on occasion referred during the course of the trial to the provision of a schedule of calculations, that was not done. Presumably, it was an oversight. I therefore determined the issue of interest in principle and left the parties to agree the arithmetic.
2 It now appears that there is a dispute of principle as to the date from which the calculation of interest should run. F & G submit that interest should run only from the date on which demand was made for repayment; different dates would apply in respect of each of the sums of $120,000 and $80,000. The plaintiff Verdell submits that interest should run from the date of payment of each sum.
3 Pursuant to s 32 of the Supreme Court Act, interest arises from the time of entitlement to the cause of action. The purpose of the rule is generally understood to be the compensation of a party held out of the profitable use of money to which the party was entitled. It appears to me the question is largely dependent upon the proper interpretation of the statute.
4 Section 9(1) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 provides that a provision in a lease requiring payment of key money is "void", while subs (3) of that section gives a right to recover amounts paid pursuant to the void provision. There is nothing in the statute which gives rise to any obligation to make a demand. As the provision requiring its payment was "void", the plaintiff is entitled to the money from the moment of payment. It seems to me therefore that it is appropriate that interest be paid from the date of payment of the sum or sums in question. There being no dispute about the arithmetic involved, that amount is $221,835.25 in interest.
5 Two other issues arose in relation to the orders sought, and it is appropriate to mention them briefly in these reasons. The first was the question of whether there should be a certificate for second counsel in respect of either the plaintiff or in relation to Corser & Corser. I accept, for present purposes, that the matters listed by Barwick CJ in Stanley v Phillips (1966) 115 CLR 471, at 479 – 480, while not exhaustive, provide a guide to the sorts of features which will justify the conclusion that the services of more than one counsel are reasonably necessary for the adequate presentation of a case. Those matters include the volume of material to be handled, the nature or extent of the cross-examination required, the anticipated length of the case, the complexity of its issues of
(Page 5)
- fact or law, and the involvement of charges of fraud or other serious imputations on personal reputation or integrity.
6 It appears from my reasons for judgment that I took the view that this was ultimately not a complex case. However, it does not follow that it was not presented in a way which involved significant complexity. In particular, I adverted at a number of points during the course of my reasons to contentions of the defendant F & G which I thought could not be sustained. Although I considered that those contentions could not be sustained, they nevertheless required research, and any factual issues associated with them involved investigation. The case was a lengthy one for a trial of this type, and there was significant cross-examination by counsel for Verdell of the witnesses called by F & G, and by counsel for F & G of the witnesses called by Verdell. I accept the plaintiff's submission that F & G pursued its case in a way which required a careful and painstaking analysis of a broad range of evidence. So far as Verdell is concerned, it is my view that there should be a certificate for second counsel.
7 So far as Corser & Corser are concerned, there was an indemnity claimed in respect of the issues in the main action. A party in such a position can normally, to an extent, "ride on the coat tails" of the plaintiff in the main action. However, it is nevertheless necessary for counsel representing a party in the position of Corser & Corser to appreciate fully the issues in the main action, and be prepared to deal with particular aspects of it which are important to that party but which the plaintiff may overlook. It is my view that there should be a certificate for second counsel for Corser & Corser. I note that Corser & Corser also seek a lifting of the upper limits set by the scale in respect of certain items. Although I have indicated that I will entertain any such application at the same time as I deal with any application of a similar kind which may be made on behalf of Verdell, I think there is some difficulty facing Corser & Corser in establishing that those limits are not adequate, given the necessarily secondary nature of its role in the trial.
8 Finally, there is a claim for indemnity costs after 11 October 2001 made by the third party, Mallesons. The claim is made on the basis that its letter dated 11 October 2001 pointed out to F & G with sufficient particularity why its claim was "fatally flawed" as against Mallesons. I accept that the letter does point to the relevant flaw with adequate particularity. It is relevant to note in this context that the letter in effect summarises detailed submissions which were made before the Full Court at the hearing of an appeal relating to a strike-out application brought by
(Page 6)
- Mallesons in this action, which was heard on 19 February 1997. The court at that time did not agree that F & G's claim against Mallesons should be struck out. However, there appear to have been essentially two reasons for the Full Court's view. The first rests on a view of the evidence which would be admissible as between Verdell and F & G which does not appear to be consistent with the later Full Court decision in Van den Bergh v Clever Management Pty Ltd, unreported; SCt of WA; Library No 970319; which was delivered on 20 June 1997. The other was that there might have arguably, been open on the pleadings some form of "loss of opportunity" claim as against Mallesons. The Full Court did note that the pleading in that respect "could be drafted more explicitly in order to reflect these allegations more clearly". I have held, for the reasons expressed in my earlier decision, that such a claim was not open on F & G's pleadings. I would therefore allow the claim for indemnity costs.
9 The appropriate orders for the present appear to me then to be, in the action brought by Verdell (2726 of 1991):
1. The defendant pay to the plaintiff the sum of $421,835.25, comprising $200,000 key money and interest thereon to judgment.
2. The defendant's counterclaim be dismissed.
3. The defendant pay the plaintiff's costs of the action, including reserved costs, with a certificate for second counsel.
4. The value of the subject matter be fixed in the sum of $421,835.25.
5. The defendant's claim against the third party be dismissed.
6. The defendant pay the third party's costs, including reserved costs, on a party and party basis until 11 October 2001 and thereafter on the basis that the defendant pay the third party all costs incurred by the third party, except insofar as they are of an unreasonable amount or have been unreasonably incurred.
10 In the action brought by F & G against Corser & Corser (2294 of 1992):
1. The plaintiff's claim be and is hereby dismissed.
2. The plaintiff pay the defendant's costs of the action, including reserved costs to be taxed.
(Page 7)
- 3. There be a certificate for second counsel for the trial.
4. The value of the subject matter of the action be fixed at $421,835.25.
5. There be a certificate for the costs of the transcript of the trial.
11 I therefore make orders as set out above in each action.
12 I observe that the rules permit the making of an application in respect of any special costs orders within 30 days of judgment or order, the latter date being today's date (O 66 r 51). Although some application for a possible extension of time in relation to such an application was foreshadowed before me, it is difficult at present to see why any such application could not be made within the time limited by the Rules.
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