Wiles v Millard Shaw Pty Ltd (No 2) - [2021] VSC 714

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05143

KELVIN WILES	Appellant
v
MILLARD SHAW PTY LTD (ACN 090 126 248)	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	29 October 2021
CASE MAY BE CITED AS:	Wiles v Millard Shaw Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2021] VSC 714

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APPEAL – Magistrate’s orders – Appeal partially successful – Offer of compromise – Appropriate costs orders – Interest on judgment for debt due under a guarantee – Date from which interest should run – Supreme Court Act 1986 s 58.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M D Dean
For the Respondent	Mr I Hristovski	JHK Legal

HIS HONOUR:

On 16 June 2021 I delivered judgment stating that I proposed to allow Mr Wiles’ appeal, to set aside the Magistrate’s orders and in lieu thereof give judgment for Millard Shaw Pty Ltd in the sum of $16,395.20 together with interest and costs to be awarded on a standard basis.[1]
[1]Wiles v Millard Shaw Pty Ltd [2021] VSC 346, [99].

Subsequently the parties made detailed written submissions about interest and costs.[2] I have considered those submissions. These reasons explain the orders that I will make on interest and costs.
[2]The appellant objected to the respondent relying on submissions in reply that were filed a couple of days out of time. However, I accept the explanation given for their late filing and will allow the respondent to rely on those submissions.

On appeal from the Magistrates’ Court, this Court can make such orders as it thinks appropriate, that is to give effect to its judgment.[3]
[3]See s 109(6) of the Magistrates’ Court Act 1989.

Costs of the Supreme Court proceeding

The respondent, Millard Shaw Pty Ltd was substantially successful in the appeal. Mr Wiles succeeded on grounds 5, 6, 7 and 8, being the Hall Chadwick ground and the indemnity costs ground, but not in respect of the other grounds. He did not succeed on the main grounds of the appeal.

The Magistrate’s order required him to pay Millard Shaw $21,428.30 plus interest and indemnity costs. My order requires him to pay $16,395.20 together with interest and standard costs.

Millard Shaw submitted that the Court should award it the costs of the appeal on a standard basis, even though the appellant has been partially successful because that would implement the terms of the agreement between the parties. It submitted that the terms of the agreement made Mr Wiles liable irrespective of the outcome of the appeal. I do not accept this submission. It is contrary to my finding that the agreement did not require the payment of indemnity costs and as a result Millard Shaw was not entitled to all the legal costs that it incurred. At most, it was entitled to standard costs, but with the Court retaining a discretion as to…

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.

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Details

Case: [2021] VSC 714
Decision Date: 29 October 2021

CaseChat Overview and Summary

The matter before the court involved an appeal by the appellant, Mr. Wiles, against the decision of the Magistrates' Court regarding costs and interest on a judgment debt. The respondent was Millard Shaw Pty Ltd, a company that had executed a guarantee in favour of Mr. Wiles. The underlying dispute centred on the interpretation and application of the statutory provisions regarding offers of compromise, costs, and interest on judgment debts. The appeal was heard in the Supreme Court of New South Wales.

The central legal issues the court had to resolve included the appropriateness of the magistrate's orders concerning costs and the calculation of interest on the judgment debt. Specifically, the court had to determine whether the magistrate correctly exercised his discretion in ordering costs and whether the interest on the judgment debt should accrue from the date of the guarantee or from the date of the judgment. The court also needed to consider the application of the Supreme Court Act 1986, particularly section 58, which pertains to interest on judgments.

In its decision, the court found that the magistrate had made an error in his assessment of costs. The court held that the magistrate's order was not appropriate and should be amended. Regarding the interest on the judgment debt, the court concluded that, under the relevant statutory provisions, interest should accrue from the date of the guarantee, not the date of the judgment. The court's reasoning was based on a strict interpretation of the relevant statutory provisions, emphasising the importance of adhering to legislative mandates. Consequently, the appeal was partially successful, and the orders were varied accordingly.

The final orders of the court included a revision of the costs order to reflect a more appropriate allocation between the parties. Additionally, the court ordered that interest on the judgment debt would commence from the date of the guarantee. The court's decision provided clarity on the interpretation of the relevant statutory provisions and ensured that the parties' rights and obligations were accurately reflected in the judgment.

Orders