Ward v Dillon - [2021] VSC 541

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST

S CI 2015 01408

IN THE MATTER of the Estate of Trevor Allan Ward, deceased

OLIVIA WARD	Plaintiff
v
GEOFFREY JOHN DILLON (in his capacity as administrator of the estate of the late Trevor Allan Ward, deceased)	Defendant

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2021
DATE OF RULING:	1 September 2021
CASE MAY BE CITED AS:	Ward v Dillon
MEDIUM NEUTRAL CITATION:	[2021] VSC 541

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CONTRACTS – Remedies – Contractual Interest – Whether contractual interest recoverable after judgment – Whether contractual interest displaces statutory interest - Subsection 101(1) Supreme Court Act 1986 (Vic) – Subsection 2(1) Penalty Interest Rates Act 1983 – Down Town Visuals v Panorama Investments [2018] VSC 427 – Statutory interest applicable.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Hill, solicitor	Armstrong Legal
For the Defendant	Mr G Dillon, solicitor	Geoff Dillon & Co Lawyers

TABLE OF CONTENTS

Evidence............................................................................................................................................... 1

Background......................................................................................................................................... 1

Submissions........................................................................................................................................ 3

Mr Dillon’s submissions............................................................................................................... 3
Ms Ward’s submissions............................................................................................................... 4

Analysis................................................................................................................................................ 5

Conclusion........................................................................................................................................... 7

HER HONOUR:

The parties are in dispute as to what interest rate applies to a judgment debt. The question for determination is whether the interest rate is governed by terms of settlement or by the Supreme Court Act 1986 (‘Supreme Court Act’) and the Penalty Interest Rates Act 1983 (‘Penalty Interest Rates Act’).

Evidence

The plaintiff, Ms Olivia Ward, relies on the affidavit of her solicitor Alun Leslie Hill affirmed 12 July 2021 (‘Hill 12 July 21 affidavit’).

The defendant, Mr Geoffrey John Dillon, relies on his affidavit sworn 13 July 2021 (‘Dillon 13 July 21 affidavit’).

Background

The late Trevor Alan Ward (‘the deceased’) died on 30 March 2014, leaving a will dated 26 June 2007 (‘the Will’).[1]
[1]Hill 12 July 21 affidavit [4].

Nicole Louise McDonough was initially appointed as the executor of the deceased estate.[2]
[2]Hill 12 July 21 affidavit [5].

On 30 March 2015, Ms Ward, commenced proceedings seeking relief under Part IV of the Administration and Probate Act 1958 for her proper maintenance and support.[3]
[3]Hill 12 July 21 affidavit [7]; Dillon 13 July 21 affidavit [3].

On 13 October 2016, Ms McDonough, in her then capacity as the executor of the deceased estate, agreed to settle Ms Ward’s claim. Ms Ward and Ms McDonough signed terms of settlement agreeing to settle Ms Ward’s claim for the sum of $235,000 (‘settlement sum’) payable by 10 February 2017.[4] The settlement sum was not paid by that date.
[4]Exhibit ‘ALH-1’, Terms of Settlement dated 13 October 2016 (‘terms of settlement’), to the Hill 12 July 21 affidavit, 2.

On 6 March 2017, Ms Ward filed a summons seeking the following orders:

1.The Plaintiff be granted an order to enforce payment and recovery of the amount of $235,000.00, being the “settlement sum” as agreed in the Terms of Settlement dated 13 October 2016 (“the Terms”) and as signed between the Plaintiff…

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 Ward v Dillon

Details

AGLC: Ward v Dillon [2021] VSC 541
Case: [2021] VSC 541
Decision Date: 1 September 2021

CaseChat Overview and Summary

In the matter of Ward v Dillon, the plaintiff, Mr Ward, sought to recover contractual interest from the defendant, Mr Dillon, pursuant to an agreement made between the parties. The case was heard in the Supreme Court of Victoria. The central dispute centred around whether contractual interest was recoverable post-judgment and whether such interest could displace the statutory interest provided for by the law.

The court was tasked with determining whether contractual interest could be recovered following a judgment and whether it could override the statutory interest as stipulated by subsection 101(1) of the Supreme Court Act 1986 (Vic) and subsection 2(1) of the Penalty Interest Rates Act 1983. The court had to examine the interaction between contractual and statutory interest provisions in light of the precedent set by Down Town Visuals v Panorama Investments [2018] VSC 427.

The court held that contractual interest was not recoverable after judgment, as it was not explicitly permitted by statute. Instead, the statutory interest as prescribed by the relevant Acts applied. The court reasoned that the statutory interest regime was comprehensive and intended to govern all interest claims following a judgment. This conclusion was consistent with the decision in Down Town Visuals v Panorama Investments, where similar issues were considered. The court's decision reinforced the principle that statutory interest rates should be applied uniformly unless otherwise expressly provided by statute.

Accordingly, the court ruled in favour of the defendant, Mr Dillon, and ordered that no contractual interest be payable beyond the statutory interest as defined by the applicable legislation.

Orders