Wong v Van Vlymen

[2020] NSWSC 1170

Supreme Court

New South Wales

Medium Neutral Citation:

Wong v Van Vlymen & Ors [2020] NSWSC 1170

Hearing dates:

On the papers

Decision date:

31 August 2020

Jurisdiction:

Equity - Expedition List

Before:

Sackar J

Decision:

Paragraphs [42]-[45]

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Whether UCPR 36.16(3A) or UCPR 36.16(1) applies — Whether reasons should be recalled and amended

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’)

Cases Cited:

260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96

AT v Commissioner of Police (No 2) [2010] NSWCA 337

Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bennette v Cohen (No 2) [2009] NSWCA 162

Brew v Followmont Transport Pty Ltd (No 1) [2005] 2 Qd R 354

Brooker v Friend & Brooker Pty Limited (No 2) [2008] NSWCA 129

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378

Kable v NSW (No 2) [2012] NSWCA 361

Nominal Defendant v Livaja [2011] NSWCA 121

Ozecom v Hudson Investment Group [2007] NSWSC 1441

Patrick Wong and Anor v Willem Van Vlymen and Others [2018] NSWSC 312

Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner [2017] NSWCA 81

Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248

Wong v Van Vlymen [2020] NSWSC 841

Texts Cited:

n/a

Category:

Principal judgment

Parties:

Patrick Wong (first plaintiff)
Overseas Shipping Trading and Investment Pty Limited; Cook Islands Company number 3421/1998 (second plaintiff)
Willem Van Vlymen (first defendant)
Margriet Van Vlymen (second defendant)
Pacific Investment Holdings Pty Ltd (ACN 001 614 964) (third defendant)
Orbis Commodities Pty Ltd (ACN 003 546 898) (fourth defendant)
Pacific Investment Ltd; (Cook Islands company number 3749/2000) (fifth defendant)

Representation:

Counsel:
I Jackman SC, S Burchett (plaintiffs)
A Leopold SC, H Somerville (defendants)

Solicitors:
S Birchall, Birchall Legal (plaintiffs)
S Keleher, Keleher Lawyers (first and second defendants)
M Doble, Eakin McCaffery Cox (solicitor for the receiver of the third, fourth and fifth defendants)

File Number(s):

2015/00060753
2020/00145651

Judgment

Procedural history

1. I gave judgment in this matter on 2 July 2020 (see [2020] NSWSC 841). At paragraph [176], I invited the parties to relist the matter so orders could be made and questions of costs determined. The matter was relisted by the parties on 11 August 2020. For the first time, the first and second defendants (hereafter ‘the defendants’) referred me to Young CJ in Eq’s judgment in 260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96 at [136] (‘260 Oxford Street’), where his Honour said:

If a person considers that a judge has failed to deal with a vital point, then at least in an equity case such as the present, the procedure over many years is to go back to the judge and ask him or her to make additional findings.

2. They asserted I had failed to deal with a number of matters concerning interest. Specifically, the Van Vlymen Entities’ application deals with Items 2, 4, 5 & 8 of the plaintiffs’ claim which are outlined at [23] of my previous judgment.

3. As I was concerned about the time between the date my decision was handed down and when these matters were raised, my view was that the most efficient way to deal with them was for the parties to provide written submissions and for one hour to be set aside for further argument if it was required.

4. The defendants’ filed a notice of motion during the afternoon of 11 August 2020 (after the listing) seeking that I recall my reasons and deliver amended reasons. The defendants provided written submissions on 19 August 2020. The plaintiffs provided written submissions on 25 August 2020.

5. Having read the parties’ submission, I determined that an oral hearing was not necessary, particularly given the time and expense the parties have devoted to this matter already. It was the defendants’ view at the directions hearing on 11 August 2020 that the matter ought to be dealt with on the papers. And the plaintiffs’ in their written submissions raised concerns about the costs that would be incurred if a further hearing was required “when there are already serious concerns about recoverability from the Defendants”.

Submissions

The defendants’ submissions

6. The defendants submit that one of their arguments with respect to Items 2, 4, 5 & 8 was summarised at [58] of my judgment but not otherwise dealt with:

Sixthly, the Van Vlymen Entities submit that any award of interest should take into account the significant benefits that have accrued to the Wong Entities in respect of the shares they have retained. They submit that the Wong entities have not discharged their onus in proving loss of use of money and the extent of it.

7. They say the argument was put in their written opening submissions of 27 May 2020 at [31]; their written closing submissions of 3 June 2020 at [31] (which the plaintiffs assert were not served or filed); their written summary of contentions of 9 June 2020 at [7], [10], [15] and [17]; and by Mr Leopold SC in oral submissions at T91 L31-37, T98 L50- T99 L36, T116 L31- L39, and T126 L1-L3.

8. The “significant benefits” which are said to have accrued to the Wong Entities are “a right to dividends flowing from the subject shares”. The defendants submitted that:

Indeed, dividends must have already flowed to the Plaintiffs’ 50% share in the JV in a sum equal to those flowing to the Receiver of Mr Van Vlymen’s 50% of the shares…

(Defendants’ summary of contentions at [7])

9. However, they also submitted that it should have fallen to the plaintiffs to inform me of any other benefits they received but they did not do so (T99 L15-16).

10. Further, the defendants submit that there is a factual misapprehension at [116] (sic) of my judgment where I state:

As the Wong Entities suggest, that position is likely to be stronger if a purchaser has actually had possession during the period of delay, as in this case (see Hutchinson v Payne (1975) VR 175, 179).

11. (This statement in fact appeared at paragraph [117].) The defendants say that on 6 March 2017 receivers were appointed for the entities that held the first defendant’s 50% share in the Solomon Islands joint venture and, accordingly, the defendants in fact (contrary to [116] (sic)) did not have possession since 6 March 2017. They refer to another of my previous judgments in this matter ([2018] NSWSC 312) where I found (at [33]):

On 6 March 2017, as a result of continued default on the Contract and Settlement Deed, the Receivers were appointed for the Van Vlymen entities that held Van Vlymen’s 50% share in the Joint Venture (POC [27]; POD [23]). During argument, it was agreed between the parties that the receivers were privately appointed.

12. The defendants submit that these matters fit within the purview of a recall application and are sufficiently important to justify further consideration, given that the quantum of the defendants’ indebtedness is directly affected by the resolution of the arguments put by the defendants. They rely upon the statement of Young CJ in Eq in 260 Oxford Street Pty Ltd & Ors v Premetis & Anor [2006] NSWCA 96 at [136] set out above and Ozecom v Hudson Investment Group [2007] NSWSC 1441 at [5] (‘Ozecom’), where McDougall J said:

There is no doubt that I have the power to recall or amend reasons. Although the steps may be regarded as “exceptional” (see Barrett J in Wentworth v Rogers [2002] NSWSC 921 at [9]), it is a power that should generally be exercised where for some reason the decision has miscarried and where the miscarriage can be rectified by the judge rather than on appeal. In this case, orders to give effect to my earlier reasons have not been entered. There is no reason not to exercise the power to recall, and every reason that the issues in any appeal should be confined to the full extent possible.

The plaintiffs’ submissions

13. The plaintiffs dispute the defendants’ allegation that the Court has not dealt with the issues raised by the defendants. They submit that the defendants overlook paragraph [59] of my judgment where I summarised the plaintiffs’ response to the defendants’ argument regarding the benefits that allegedly accrued to the Wong Entities in respect of the shares they retained. They say the defendants also overlook paragraphs [114]-[116] and [166] and [168] where I accepted the plaintiffs’ argument. They submit those paragraphs give sufficient reasons for the rejection of the defendants’ argument to enable the issue to be fully considered on appeal, if sought by the defendants.

14. With respect to the alleged factual misapprehension, the plaintiffs point out that their argument (summarised at [59] of my judgment) was that the defendants had been “effectively in control of the companies to the exclusion of Mr Wong until around March 2017” (emphasis added). At trial, and apparently since then, there was and has been no dispute of that fact. The plaintiffs submit that is consistent with [116] (sic) of my judgment, which states the purchaser had been in possession “during the period of delay” (emphasis added), which does not mean the whole period.

15. The plaintiffs also submit that their argument (as summarised at [59]), accepted by me, was that the Wong Entities were, from March 2017, entitled to interest upon the “liquidated debts” created by the November 2016 Deed, independent of any benefit received, and that, in any event, the parties benefitted equally.

16. The plaintiffs also dispute the competency of the defendants’ application on the basis that the defendants are long out of time (14 days) to apply for a variation of the judgment under UCPR 36.16(3A), which power they say was created to regularise the exercise of the Court’s inherent jurisdiction, having regard to the entry of judgment under the UCPR upon “publication”. They submit that the authorities cited by the defendants are confined to applications for variation made promptly prior to entry of judgment and in any event this is not an exceptional case warranting the exercise of the Court’s discretion (Wentworth v Rogers [2002] NSWSC 921 from [7], cited in Ozecom at [9]). They also submit that UCPR rr 36.15, 36.16 (1), (2) & (3) and 36.17 do not apply in the present case.

17. The plaintiffs seek that the notice of motion be dismissed with indemnity costs.

A question of jurisdiction

18. The defendants called in aid the decision of Young CJ in Eq in 260 Oxford Street and the decision of McDougall J in Ozecom to justify the belated raising of my reasoning and findings. As I have noted, the plaintiffs submit that those authorities and others in line with them must be considered and applied in light of the UCPR and, in any event, have no application to the current situation because they concern applications for variation which were made prior to entry of judgment. They also submit that the application should not be entertained as this is not an “exceptional case”.

19. Given the time and undoubted expense devoted to this matter already, in the end, with the parties’ consent, I determined this matter on the papers. In these circumstances, I did not have the benefit of oral argument. However, on the materials that were before me, I am of the view that the defendants’ application is incompetent but for slightly different reasons to those proposed by the plaintiff.

20. Young CJ in Eq’s statement in 260 Oxford Street (at [136]) appears to me a clear reference to the inherent jurisdiction of the Court recall and amend its reasons, a procedure which his Honour thought ought to be followed “at least in an equity case such as the present”. Young CJ in Eq, as well as Tobias JA and Basten JA, referred to the decision of Jones J in Brew v Followmont Transport Pty Ltd (No 1) [2005] 2 Qd R 354, in which the defendant drew attention to an incorrect finding of fact by Jones J and sought correction of the reasons in accordance with the principles laid down in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.

21. Since that decision was handed down, UCPR 36.16(3A) has been introduced. It provides:

If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.

22. UCPR 36.16(3C) then states, “[d]espite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B)”.

23. The rationale behind such a rule is obvious. The longer parties wait to approach the judge, the harder it is for the judge to recreate the atmosphere of the case in order properly to do justice to the parties.

24. UCPR 36.16(1) also provides, however, that “the court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order” (my emphasis).

25. The plaintiffs raised the question of whether or not any inherent jurisdiction remains following the amendment to the UCPR, citing AT v Commissioner of Police (No 2) [2010] NSWCA 337 at [7]-[14]; Kable v NSW (No 2) [2012] NSWCA 361 at [2]‐[4], [9] and [15]‐[20]; affirmed most recently in Foundas v Arambatzis [2020] NSWCA 51 at [4]). Earlier, in Bennette v Cohen (No 2) [2009] NSWCA 162, the Court of Appeal was concerned with a case in which Campbell JA had made orders on 24 March 2009 (in [2009] NSWCA 60) but ordered that Order (d), concerning costs, be entered only if no notice of motion seeking to vary that order was filed within 14 days. The period expired at 12:00 midnight on 7 April 2009. The respondent entered the orders the following day, 8 April 2009. On 16 April 2009, consent orders were filed whereby it was ordered that the time in which to file any notice of motion on the issue of costs be extended to 22 April 2009. The appellant filed a notice of motion to that effect on 21 April 2009. Then, on 24 April 2009, the respondent filed a notice of motion seeking that Orders (c) and (d) of Campbell JA’s orders be set aside and other associated relief. Tobias JA (Campbell and Ipp JJA agreeing) said (at [6]-[10]):

The power of the Court to vary an order once entered

6 The power of the Court to set aside or vary a judgment or order is to be found in r 36.16 of the Uniform Civil Procedure Rules 2005 …

7 As I have noted, the orders made by this Court on 24 March 2009 were duly entered on 8 April 2009, no notice of motion to vary Order (d) having been filed in the meantime. However, on 21 April 2009 the appellant filed a Notice of Motion seeking a variation of that order to the effect that the appellant’s costs referred to in that order be paid on an indemnity basis after 29 January 2004. As that Notice of Motion was filed within 14 days of the entry of the orders, r 36.16(3A) empowers this Court to determine the issue raised by that Notice of Motion as if Order (d) had not been entered.

8 However, the respondent’s Notice of Motion was not filed until 24 April 2009, outside the 14 day period referred to in r 36.16(3A) which expired on 22 April 2009. Although, as I have noted, a consent order was filed on 16 April 2009 extending the time for filing of any notice of motion on the issue of costs until that date, such an order was unnecessary in view of the provisions of sub-rule (3A).

9 It follows from the foregoing that the respondent’s Notice of Motion filed on 24 April 2009 was filed out of time with the consequence that there is no power in the Court, even if it was otherwise minded to do so, to make the orders referred to in paragraphs (1) to (4) inclusive of that Motion. This lack of power is confirmed by r 36.16(3C) which prohibits the Court from extending the time limited by sub-rule (3A). The question of a stay involves other considerations which fall outside the provisions of r 36.16.

10 Accordingly, the general rule that a court ordinarily has no power to set aside or vary a final judgment or order after it has been entered applies: DJL v Central Authority [2000] HCA 17; (2000) 201 CLR 226 at 245 [38]; Meehan v Glazier Holdings Pty Ltd [2002] NSWCA 22; (2002) 54 NSWLR 146 at 151 [26]. Both of these authorities hold, certain presently irrelevant qualifications apart, that the rule with respect to this Court is that as restated by Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 where his Honour said (at 530):

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of the court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have the power to reinstate a proceeding of which it has finally disposed.”

(my emphasis)

26. It seems to me that the defendants’ application must be determined under the UCPR.

27. Although orders have not yet been entered, the instant judgment was published on NSW Caselaw on 2 July 2020. The question is whether the judgment was “entered” on that day. The plaintiffs state that it was.

28. Since 7 November 2008, UCPR 36.11(2) has provided that “[u]nless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court’s computerised court record system.” In Tarrant v Statewide Secured Investments Ltd [2011] NSWCA 248 at [6], Basten JA (McColl JA agreeing) described the “system of computerised court records” as “JusticeLink”. The circumstances as set out at [8]-[10] were as follows:

… It was understood by the parties, until quite recently, that judgment had been given by Adams J in the Possession List in the Common Law Division on 14 May 2009. Even at that stage, however, there was doubt about the form of the orders. The record made on that date read:

"Confirm order made in accordance with the statement of claim in matter no. 14583/08. Stood over for 7 days before the duty judge."

Understandably, this formula gave rise to some problems in entering the order, although the language set out above appears verbatim on the JusticeLink record. In addition to seeking judgment for possession and leave to issue a writ of possession (and costs) the statement of claim sought a judgment at a specified amount as at 28 August 2008, together with interest at a specified rate "on the judgment sum". The figure needed to be corrected in order to enter judgment. That calculation was undertaken and, on 17 June 2009, Adams J signed a minute recording the judgment in matter 14583 of 2008.

Those orders were not entered in JusticeLink: rather, on 18 June 2009 the record identifies "Orders in accordance with SMO", together with a note of a stay. Thereafter, the history of the proceedings indicates that the parties treated the orders as contained in the short minutes of order as having been entered.

29. At [13], Basten JA said:

As will be noted below, the present proceedings involve an application for leave to appeal from a judgment refusing to set aside the "judgment entered on 17 June 2009". The parties having acted on the basis that such judgment was entered and the judgment having been enforced at least to the extent of the issue of a writ of possession and the sale of the property, it is appropriate that this Court rectify the informality attending the orders of 17 June 2009. That may be done by this Court now ordering that the orders be taken to have been entered on 17 June 2009 and, pursuant to r 36.4(3), ordering that the direction be taken to have effect as at that date.

30. It would seem that Adams J’s judgment was not “entered” on 14 May 2009 despite judgment having been handed down on that date.

31. Another case of relevance is Nominal Defendant v Livaja [2011] NSWCA 121 (‘Livaja’). The Court of Appeal was concerned with an amendment of judgment by Garling DCJ. Garling DCJ had delivered oral reasons and announced a “verdict” in a specified sum. The plaintiff immediately raised a perceived error in the calculation which Garling DCJ said he would consider over lunch. After lunch, he delivered further oral reasons correcting that error. The defendant appealed, arguing that judgment had been “entered” by the oral reasons and therefore any amendment had to be done under the strict UCPR 31.16(3A). Basten JA delivered the judgment of the Court. The defendant’s argument was rejected on the basis that there was no evidence that the judgment had been “entered” into the District Court’s “computerised record system, being part of the Justicelink computer system” prior to the luncheon adjournment (see [19]).

30. Brooker v Friend & Brooker Pty Limited (No 2) [2008] NSWCA 129 is somewhat analogous to the present case. There, the Court of Appeal had published reasons to the effect that a majority had decided to uphold the appeal but directed the parties to bring in short minutes of order reflecting the reasons. The short minutes that were brought in did not reflect the reasons and led to a notice of motion seeking that the Court recall its reasons for judgment. Although Mason P did not explicitly refer to UCPR 36.16(1), his Honour appeared (at [10]-[11]) to treat the situation as one in which reasons had been published but judgment or orders not entered:

10 I have approached the matter on the basis that my power at this stage of the appeal is limited, notwithstanding that final orders have not yet been pronounced, let alone entered, in the appeal. Exactly how limited was the subject of debate at the hearing on 29 November 2007. The principles are helpfully summarised by Heydon JA (with whom Barr J and Smart AJ agreed) in R v Nitin Giri (No 2) [2001] NSWCCA 234 at [17].

11 At the end of the day, Mr Friend accepted that it was not open to this Court in effect, to entertain an appeal from its own decision. Unless it could be shown that we had misunderstood the issues in the appeal or failed to address them or had denied procedural fairness in resolving them then, as a general proposition, what has been written must stand. It would be for the High Court to determine whether the reasons of the majority embody appealable error, and whether to set aside or vary orders based upon them.

33. As the plaintiffs point out, Ozecom is another case in which reasons had been published but orders not entered.

34. It seems to me at least arguable that judgment has not been “entered” in this case. No judgment or order was entered in JusticeLink after my decision was handed down on 2 July 2020. Therefore, whilst it is regrettable that the defendants took so long to raise the matter with me, it does not seem that they ought to be constrained by the 14 day time limit in UCPR 36.16(3A). Rather, it seems UCPR 36.16(1), which is not strictly time limited, applies.

35. However, my power to recall and amend my reasons under that rule is not unlimited. The plaintiffs relied on Wentworth v Rogers [2002] NSWSC 921 from [7] (cited in Ozecom at [9]), where Barrett J:

It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision.

36. Further, as Basten JA stated on behalf of the Court of Appeal in Livaja (at [21]-[25]):

On the basis that no judgment or order had been entered, the appellant nevertheless submitted that it would be a "quite exceptional" case in which part of reasons which had been delivered would be withdrawn and varied, so as to change the final result: see State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (No 2) [1982] HCA 51; 150 CLR 29 at 38 (Mason and Wilson JJ); Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 302-303 (Mason CJ); DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [34] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Elliott v The Queen; Blessington v The Queen [2007] HCA 51; 234 CLR 38 at [31]-[32] (Gummow, Hayne, Heydon, Crennan and Kiefel JJ). Referring to the remarks of Mason CJ in Autodesk, the judgment of the Court in Elliott at [32] stated:

"His Honour gave examples from jurisdictions in this country (including the New South Wales Court of Appeal) and the United Kingdom where the power to reopen had been exercised on grounds not limited to denial of a fair hearing, but went on:

'What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases.'"

There was no suggestion in the present case that counsel for the plaintiff was seeking to reargue his case: rather, he was seeking to draw attention to an apparent misapprehension as to the correct manner to deal with the injuries and disabilities resulting from the 2003 accident.

Further, it is helpful to distinguish between a case such as Autodesk, where the High Court believed it had delivered a final judgment, a case such as Brooker v Friend (No 2) [2008] NSWCA 129, where this Court delivered its reasons, with proposed final orders, but sought submissions in respect of the appropriate form of the orders, and a case such as the present, where a trial judge, without the benefit of transcript, is delivering an oral judgment from handwritten notes. It is also desirable to distinguish between cases where, perhaps because of the delivery of formal written reasons, the application to vary the judgment is delayed, as compared with the present case, where it was made immediately the calculation had been expressed. The reason why such distinctions are important is that the public interest in the finality of litigation carries far less weight in some circumstances than in others. Where an apparent error can readily be addressed without the need to resort to expensive and time-consuming appeal proceedings, that course should be permitted and encouraged.

In the present case, the following factors weighed in favour of reconsideration by the trial judge:

(a) the possible error was succinctly identified by counsel after orally delivered reasons;

(b) whilst not an arithmetical error, the suggested mistake was readily addressed, and if accepted, corrected;

(c) to the extent that it was founded on confusion or inconsistency within the reasons, it was an error best resolved by the trial judge, and

(d) the complaint was plausible.

If the complaint were correct, it would have promoted no legitimate forensic purpose to have it remain uncorrected.

The only countervailing consideration was that, on one view, the error arose in part because neither party had formulated submissions in accordance with the governing statutory provision, namely s 126 of the Motor Accidents Compensation Act. This last consideration is not to be ignored, but it may have more weight as a factor relevant to costs, although both parties appear to have been at fault in this regard. It is, accordingly, appropriate to address the variation made by the trial judge on its merits, accepting that it was appropriate for his Honour to reconsider, and if persuaded of error, to rectify the mistake in his earlier reasons.

Whether the jurisdiction should be exercised

37. Despite the fact no entry was to be made on JusticeLink that day, I intended to deliver final judgment on the question of whether in principle the plaintiffs were entitled to interest on the various amounts to which Items 2, 4, 5 and 8 relate when I published my reasons on 2 July 2020; what I left to the parties was the calculation of interest on the relevant amounts and the formulation of orders reflecting those reasons. The defendants did not raise their concerns regarding my reasons promptly. As I have stated, the matter was first brought to my attention on 11 August 2020, more than five weeks after publication.

38. However, in any event, the defendants’ argument was not overlooked. As the plaintiffs point out, their response to the defendants’ argument was summarised immediately following my summary of the defendants’ at paragraph [59]:

In response, the Wong Entities submit that the dividends were declared and paid long after default under the Deed. They further submit that their contractual or statutory entitlement to interest on the liquidated debts under the Deed is independent of any benefit received from delay in completing the Settlement Agreement. They say both parties benefitted equally and there is no evidence that the benefit to Mr Wong exceeded the value of his exertions in seeking to restore the viability of the joint venture vehicles. Finally, they submit that Mr Van Vlymen’s liability to pay interest on the purchase price from the date it fell due in 2015 or was ordered to be paid is clear given that he was effectively in control of the companies to the exclusion of Mr Wong until around March 2017 (see Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 at [75]; Hutchinson v Payne (1975) VR 175 at 179).

(emphasis added)

39. The plaintiffs’ submissions on this point were further picked up and accepted at paragraphs [115]-[117] of my judgment:

The purpose of the discretionary power to award interest under s 100 is to permit a successful party to be properly compensated for loss suffered (see Ritchie's Uniform Civil Procedure NSW [s 100.10] and the cases cited there, e.g., Haines v Bendall (1991) 172 CLR 60, 66, 72). Similarly, the “ordinary position” that, absent a contrary order, interest accrues on any amount payable under a judgment or order for costs, also reflects a compensatory purpose (see Ritchie's Uniform Civil Procedure NSW [s 101.10]; Doppstadt Australia Pty Ltd v Lovick and Son Developments Pty ltd (No 2) [2014] NSWCA 158 at [403]; see also McKeith v Royal Bank of Scotland Group PLC [2016] NSWCA 260 at [52]–[60] where the previous s 101(4)-(5) is discussed).

Relevantly with respect to the monies due under the Settlement Agreement and orders for specific performance, in Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285 McHugh and Gummow JJ said (at [75]):

… a party seeking equitable relief may be obliged to do equity by the payment or repayment of moneys with interest [footnote: See, for example, the orders in Nelson v Nelson (1995) 184 CLR 538 at 618-619; Maguire v Makaronis (1997) 188 CLR 449 at 500]. A purchaser who, after the date fixed for completion, seeks specific performance will be treated in equity as having been in possession from the completion date and, in general, will be required to offer the vendor interest on the purchase price from that date [footnote: Esdaile v Stephenson (1822) 1 Sim & St 122 at 123 [57 ER 49 at 50]; Harvela Ltd v Royal Trust Co [1986] AC 207 at 236-237. See also Davis, "Interest as Compensation" in Finn (ed), Essays on Damages, (1992) 129 at 138-139].”

As the Wong Entities suggest, that position is likely to be stronger if a purchaser has actually had possession during the period of delay, as in this case (see Hutchinson v Payne (1975) VR 175, 179).

(Cf Plaintiffs’ Submission on Hearing dated 28 May 2020 [63]-[65]).

40. Finally, at paragraphs [166]-[167] I held that:

I do not agree with the Wong Entities’ submission that they have a contractual right to interest under cll 8(c) and 10.2(d)(iv) of the Deed…

However, so far as I have a discretion to award interest under ss 100 and 101 of the CPA, I would exercise my discretion in favour of the Wong Entities with respect to each of their claims to interest.

41. Judges are obliged to give adequate reasons. However, the question of adequacy is a relative concept (see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442-443; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, 381). Further, “[j]udges should ordinarily determine all issues before them to assist the appeal process and obviate recourse to a new trial” (Peter Sleiman Investments Pty Ltd as trustee for the Sleiman Family Trust v Deputy Commissioner [2017] NSWCA 81 at [70] (Leeming JA, Beazley P agreeing and Emmett AJA agreeing “generally”)). However, as Young CJ in Eq said in 260 Oxford Street (at [135]):

One sees notices of appeal which seem to suggest that a judge was in error by failing to give reasons in respect of every submission made by losing counsel. If he or she were to do so, however, judgments would get even longer than they are at the moment. A judge is only bound to give such reasons as are required for a proper determination of the case in the trial court and to enable a potential appellant and the appellate court to see clearly why the case was decided the way it was decided.

42. In my view, when paragraphs [58]-[59], [115]-[117] and [166]-[166] are read together, as they should be, those paragraphs would allow the Court of Appeal to see why I decided the case as I did.

43. Further, when paragraph [117] is read alongside paragraph [59], it is clear there was no factual misapprehension. I agree with the plaintiffs’ submission as summarised at [14].

44. The plaintiffs have sought costs on an indemnity basis. Although in my view the defendants inordinately delayed, I am of the view that the defendants should pay the costs of this application but on the ordinary basis only. However, if it was sought, I would determine those costs on a lump sum basis and order they be paid forthwith.

45. I would now invite the parties to bring in short minutes reflecting my reasons.

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Decision last updated: 31 August 2020