EMCL Pty Ltd v Esanda Finance Corp Ltd [1998] FCA 1483

NO QUESTION OF PRINCIPLE IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 102 of 1998

BETWEEN: EMCL PTY LTD (ACN 007 347 622)

and: FIRST Applicant

FINPAC HOLDINGS LTD

SECOND APPLICANT

esanda finance corporation limited

(acn 004 346 043)

respondent

between: EMCL PTY LTD (ACN 007 347 622)

cross-claimant

ESANDA FINANCE CORORATION LIMITED (ACN 004 346 043)

cross-respondent

JUDGE: HEEREY J

DATE: 17 nOVEMBER 1998

PLACE: MELBOURNE

RULING

The applicants now seek to contend that where leases have been predetermined the calculation of the amount due to EMCL (or Finpac) should exclude entirely the net present value of the residual value of the vehicle. In other words, they say the expression "net present value of the outstanding rentals" in cl 4(b) of the Master Discount Agreement does not include the residual value. This contention was first advanced in Mr Dunn's affidavit sworn 9 November 1998. It results in a dramatic increase in the amount of the applicants' alternative claim, which now amounts to some $16.8 million: Mr Dunn's affidavit par 27. Previously the applicants' case, apart from the construction of cl 4(c) which I have rejected, was based on calculations or assumptions which conceded or assumed that the net present value of the residual value should be taken into account in the case of predeterminations: see the applicants' proposed formula at CB 827. This formula produced a result which, depending on a number of variables, ranged from about $0.4 million to $1 million. This case was commenced as a construction point. Counsel agreed on the six questions which were submitted and which I answered in my judgment given on 17 September this year. There was no hint in the case presented up until judgment of this new major way in which the applicants now suggest cl 4(b) should be construed. It would be unfair to the respondent to allow this claim to be raised at this stage. It would inevitably open up the case into other issues of rectification and possibly further matters. It is perhaps not surprising that it did not occur to the applicants to raise this contention until such a late stage, indeed after the substantive trial and judgment. As I pointed out in my judgment (at 3-4), it was common ground that the amount paid by the respondent to EMCL included an amount for the future receipt of the residual value. The applicants' new construction would be quite inconsistent with that underlying reality. I do not propose to entertain this issue.