VWA v Intercon Group Pty Ltd

[2010] VCC 482

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION

GENERAL DIVISION

Case No. CI-06-00047

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
THE INTERCON GROUP PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24, 25 and 26 February 2010
DATE OF RULING:	30 April 2010
CASE MAY BE CITED AS:	VWA v Intercon Group Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0482

RULING

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Catchwords: Penalty interest – Calculation of Interest when Damages accrue over time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G A Lewis QC with	Thomson Playford Cutlers
Ms S Manova
For the Defendant	Mr J R Moore SC with	Norris Coates
Mr A W Middleton
HIS HONOUR:

1          In this matter, the parties require me to fix the sum to which interest under the Penalty Interest Rates Act 1983 is to be applied.

2          In fixing this sum, I am satisfied that the approach which I should adopt is one which takes into account the fact that the liability of the plaintiff to Mr Zhang has been accruing over time.

3          It is put on behalf of the plaintiff that the amount of payments made by it as claimed in the Writ was $161,558.00 and, that in the circumstances in which the defendant’s liability in the contribution proceedings has been fixed at $160,880.00, there is no justification for the Court adopting the approach taken by the High Court in Grincelis v House (2000) 173 ALR 564 in calculating penalty interest namely, to compute the amount to be allowed for interest by applying one half of the applicable statutory rate during the relevant periods in which I have determined interest is recoverable to the sum allowed for damages. I do not accept this submission.

4          In my Reasons for Judgment delivered 5 March 2010,[1] I apportioned the defendant’s responsibility for the injury occasioned to Mr Zhang at 21 per cent. It follows that at the time of the issuing of the Writ, notwithstanding the fact that the plaintiff had at that time made payments in respect of the claim instituted by Mr Zhang against it in the sum of $160,558.00, the responsibility of the defendant, calculated at that time with respect to those payments, was to reimburse the plaintiff a sum of approximately $34,000.00.

[1] [2010] VCC 315

5           This analysis highlights the flaw in the submission made on behalf of the plaintiff that the figure claimed by the plaintiff in its Writ should provide guidance as to whether the loss in respect of which the plaintiff is entitled to indemnity from the defendant has been one which has been accruing over time.

6          In the circumstances of the present case, I can see no reason for departing from the approach adopted by the High Court in Grincelis, namely to compute the amount to be allowed for interest by applying one half of the statutory rate during the relevant periods in which I have determined interest is recoverable by the plaintiff to the sum allowed for damages, namely $160,880.00.

7          I will allow the parties the opportunity to make the required calculation as to interest and to make submissions as to any further orders which are sought in this proceeding

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