Whiteley v Hodge - [2000] NSWSC 1161

CITATION: Whiteley v Hodge [2000] NSWSC 1161

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2051/00

HEARING DATE(S): 5 December 2000

JUDGMENT DATE: 7 December 2000

PARTIES :

Mely Meia Whiteley (P)
Russell John Hodge (D)

JUDGMENT OF: Hamilton J

COUNSEL : T A Kolomyjec (P)
A K Ottesen (D)

SOLICITORS: Virginia Odtojan & Associates (P)
Owen Hodge Lawyers (D)

CATCHWORDS: INTEREST [5] - Recoverability of interest - Award of interest as damages - Up to judgment - General principles - Supreme Court Act 1970 s 94 - In "proceedings for recovery of any money" - Proceedings for declaration of sum repayable under mortgage - What are - INTEREST [21] - Where equitable relief or fiduciary relationship - Where contract displays intent that no interest be paid.

LEGISLATION CITED: Supreme Court Act s 94

CASES CITED: Bloch v Bloch (1981) 180 CLR 390
Brennan v Kinjella Pty Ltd (No 2) SCNSW 20 July 1993 Young J unreported
Mendl v Smith (1943) 112 LJ Ch 279
Piper Industries Pty Ltd v Hemphill (No 2) SCNSW 20 June 1989 Young J unreported
Piper Industries Pty Ltd v Hemphill SCNSW 8 June 1989 Young J unreported
Whiteley v Hodge [2000] NSWSC 866
Williams v Vicroft Pty Ltd SCNSW 31 May 1989 Powell J unreported

DECISION: That there be no order for the payment of interest.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 7 DECEMBER 2000
2051/00 MELY MEIA WHITELEY v RUSSELL JOHN HODGE - EXECUTOR OF THE ESTATE OF GWENDOLINE DAISY WHITELEY
JUDGMENT
1 HIS HONOUR: In this matter I delivered a judgment on 24 August 2000 in which I answered three questions which I ordered, under Part 31 r 2 of the Supreme Court Rules 1970, to be determined separately from and before any other questions in these proceedings: Whiteley v Hodge [2000] NSWSC 866 (“my judgment”). The parties have considered the answers I gave to those questions and have now made submissions on other questions which need to be determined finally to dispose of the proceedings.
2 The first of the matters to be determined relates to whether there is now a valuation which answers the description in clause 1.2 of the mortgage and in what sum that valuation is to be taken to be. In my judgment I determined that there was not, at that time, any valuation in existence which answered the description of clause 1.2 of the mortgage, or to which the parties were otherwise bound. I did indicate, however, that, bearing in mind the terms of clause 1.2, there was not, in my view, any reason why the plaintiff should not, even at this comparatively late stage, procure a valuation which might answer the description.
3 The plaintiff proceeded to obtain a valuation from a Mr Jeffrey Burns. Mr Burns indicated, in a report which he initially produced (“the first report”) that, in his opinion, the value of the property, as at the relevant date, was in the range of $300,000 to $330,000…

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 Whiteley v Hodge

Details

AGLC: Whiteley v Hodge [2000] NSWSC 1161
Case: [2000] NSWSC 1161
Decision Date: 7 December 2000

CaseChat Overview and Summary

In the case of Whiteley v Hodge, the dispute arose between the plaintiff, Mr Whiteley, and the defendant, Mr Hodge, concerning the recoverability of interest under a mortgage agreement. The matter was heard in the Supreme Court of Queensland. Mr Whiteley sought to recover interest on a sum repayable under a mortgage, arguing that interest should be awarded up to the date of judgment as a matter of damages. This case presented the court with specific legal issues surrounding the general principles of recoverability of interest under the Supreme Court Act 1970, section 94, and the distinction between proceedings for the recovery of money and those for the declaration of a sum repayable under a mortgage.

The court was required to determine whether the proceedings constituted an action for the recovery of money, which would entitle the plaintiff to interest under section 94 of the Supreme Court Act, or if they were merely proceedings for the declaration of a sum repayable under a mortgage. Additionally, the court had to consider whether the equitable relief or the nature of the fiduciary relationship between the parties should affect the recovery of interest, and whether the contract itself contained an intent to exclude interest. The court also examined if the principles applied to cases involving equitable relief or fiduciary relationships applied to the current dispute.

After carefully considering the arguments and the relevant legal principles, the court ruled that the proceedings were not for the recovery of money but rather for the declaration of a sum repayable under a mortgage. Therefore, the court held that interest could not be awarded under section 94 of the Supreme Court Act. The court further noted that equitable relief or the fiduciary relationship did not change the nature of the proceedings, and that there was no intent expressed in the contract to exclude interest. Consequently, the plaintiff's claim for interest was dismissed.

The court's final order was that the plaintiff's claim for interest was dismissed, and no interest was awarded to the plaintiff up to the date of judgment. The court made it clear that the proceedings were not considered as actions for the recovery of money, and therefore, the general principles applicable to such proceedings did not apply in this instance. The court's decision was based on the specific nature of the dispute and the legal principles governing the recoverability of interest in the context of mortgages.

Orders