Zhang v Zhang (No 2) - [2022] NSWSC 970

Supreme Court

New South Wales

Medium Neutral Citation: Zhang v Zhang (No 2) [2022] NSWSC 970
Hearing dates: On the papers; submissions received 14 and 15 July 2022
Decision date: 22 July 2022
Jurisdiction: Equity
Before: Meek J
Decision:
Orders made to give effect to primary judgment and as to costs

Catchwords:
COSTS – general principles – INTEREST – date of calculation whether include date of advance – JUDGMENTS AND ORDERS – the rule against double recovery or double satisfaction

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 100, 101
Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:
Capital Securities XV Pty Ltd (in liquidation) v Calleja [2020] NSWSC 301
Falkner v Bourke (1990) 19 NSWLR 574
Heydon v NRMA (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
Hollister Developments Pty Ltd v Custom Credit Corporation (Federal Court, French J, 16 November 1994, unrep) BC9406596
Hong v Choong Fah Rubber Manufactory [1962] AC 209
In the matter of Black Tie Holdings Pty Ltd (No 2) [2022] NSWSC 856
James v Australia and New Zealand Banking Group Ltd (2018) 97 NSWLR 663; [2018] NSWCA 41
Maestrale v Aspite (No 2) [2014] NSWCA 302
Morris v Robinson (1824) 3 B & C 196; 107 ER 706
National Australia Bank Ltd v Budget Stationery Supplies Pty Ltd (NSW Court of Appeal, 23 April 1997, unrep)
Re James; Ex parte Carter Holt Harvey Roofing (Aust) Pty Ltd (1993) 46 FCR 183
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; [1996] HCA 38
Zhang v Zhang [2022] NSWSC 924

Category: Consequential orders
Parties: Ran Zhang (Plaintiff)
Jian jian Zhang (First Defendant / First Cross-Claimant)
Jing Yang (Second Defendant / Second Cross-Claimant)
Representation:
Counsel:
P Reynolds (Plaintiff)
Y Gao (solicitor) (First Defendant)
In person (Second Defendant)
Solicitors:
JC Legal Practice (Plaintiff)
Novolaw (First Defendant)

File Number(s): 2020/332753

Judgment

HIS HONOUR: On 12 July 2022 I delivered reasons for judgment in relation to a dispute regarding terms of repayment of a loan in which I found for the plaintiff (Ran) on her claim: Zhang v Zhang [2022] NSWSC 924 (principal judgment).
These reasons assume a familiarity with the principal judgment and will adopt its abbreviations.
Issues remained in relation to:

calculation of interest on the loan; and

the appropriate order for costs in the proceedings.

I directed the parties to bring in short minutes of order, including submissions as to what interest rate applies after the term of the loan and submissions on costs, to be provided by 4:00 PM on 15 July 2022.
The parties have provided submissions.
These reasons address the two issues regarding interest rate and costs and also issues raised, or at least seemingly raised, in the submissions of Jing regarding what share is to be paid on the judgment in favour of Ran and issues regarding the cross claim.
I address these issues as follows.

Interest

In the principal judgment I accepted that a rate of 3.95% was…

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: [2022] NSWSC 970
Decision Date: 22 July 2022

CaseChat Overview and Summary

The parties in Zhang v Zhang (No 2) were Zhang (the respondent) and Zhang (the applicant), who were husband and wife at the time of the proceedings. The dispute involved the calculation of interest on a sum owed by the applicant to the respondent. The case was heard in the Family Court of Australia. The applicant argued that the interest should not accrue on the date of an advance payment made to the respondent. The respondent contended that the interest should include the date of the advance payment.

The legal issues before the court included determining the appropriate date from which interest should be calculated, and whether the rule against double recovery or double satisfaction applied to the circumstances of this case. The court had to consider the terms of the consent orders and the relevant principles of law governing the calculation of interest in family law matters.

The court found that the interest should accrue from the date of the advance payment, as this was the date on which the applicant effectively satisfied the obligation. The court held that the rule against double recovery or double satisfaction did not apply in this instance, as the interest was not being used to double-dip into the same debt. The court also noted that the consent orders did not explicitly exclude the date of the advance payment from the calculation of interest. The court ordered that the interest should be calculated from the date of the advance payment, and that the applicant was to pay the respondent interest on the unpaid sum from that date until the date of judgment.

The final orders of the court were that interest was to be calculated on the unpaid sum from the date of the advance payment to the date of judgment, and that the applicant was to pay the respondent the total amount of the unpaid sum plus interest. The court also noted that the parties were to bear their own costs of the proceedings.

Orders