EMCL Pty Ltd & Anor v Esanda Finance Corporation Ltd (No 2) [1998] FCA 1726

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE – interest on judgment – appropriate rate – whether Supreme Court rate of State in which case being heard

Federal Court of Australia Act 1976 (Cth) s 51A

Penalty Interest Rates Act 1983 (Vic) Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) (1993) 47 FCR 388 Alec Finlayson Pty Ltd v Armadale City Council (unreported, Burchett J, 6 March 1998) Kettle Chip Co Pty Ltd v Apand Pty Ltd (1998) 155 ALR 134 Nagy v Masters Dairy Ltd (1996) 150 ALR 273 Embo Holdings Pty Ltd v Gary Sterling and Others (unreported, Millane JR, 19 June 1998) SEA Food International v Lam (1998) 16 ACLC 552 Henderson v Amadio Pty Ltd (No 2) (1996) 62 FCR 221

EMCL PTY LTD & ANOR v ESANDA FINANCE CORPORATION LTD (NO. 2) VG 102 of 1998 HEEREY J 18 DECEMBER 1998 MELBOURNE

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: esanda finance corporation limited

AND: (acn 004 346 043)

CROSS-CLAIMANT

EMCL PTY LTD (ACN 007 347 622)

CROSS-RESPONDENT

JUDGE: HEEREY J

DATE: 18 December 1998

PLACE: MELBOURNE

THE COURT ORDERS THAT: 1. There be judgment for the first applicant against the respondent for $90,529.83. 2. The Court declares that the respondent is entitled to receive and retain for itself the residual value in respect of the leases of the 2749 vehicles referred to in paragraph 5 of the further amended statement of claim. 3. The applicants, whether personally or by their servants agents or howsoever otherwise, be restrained permanently from sending any invoice or other request for payment in respect of any of the 2749 vehicles referred to in paragraph 5 of the further amended statement of claim. 4. The applicants, whether personally or by their servants agents or howsoever otherwise, be restrained permanently from interfering with or hindering the respondent's right to receive the residual value or any other monies in respect of any of the 2749 vehicles referred to in paragraph 5 of the further amended statement of claim or any part of the proceeds of their sale including the first applicant refusing to remove any security interest over any such vehicle. 5. The order made by the Honourable Justice Sundberg on 16 April 1998 as varied by the orders of the Honourable Justice Heerey on 25 May 1998 and 11 June 1998 is set aside. 6. On or before 23 December 1998 the respondent write to the following persons advising them that the respondent has no interest in the leases in the name of those persons and that all payments in respect of the said leases should be paid to the first applicant: (a) Ian Arthur Shuttle Contract No. 200980002; (b) Endovision Pty Ltd Contract No. 300980006; (c) RG Woodward Pty Ltd Contract No. 300980004; (d) Shepparton Newspapers Pty Ltd Contract No. 300980003; (e) V Haller Pty Ltd Contract No. 300980001; (f) Patricia Margaret Dunnicliff Contract No. 700980007. 7. The Court declares that the calculation of any amounts due pursuant to clause 4(b) of the master discount agreement between the first applicant and the respondent dated 2 January 1990 be made in accordance with the joint report of John Richard Cumpston and John Howard Day dated 10 December 1998 and the supplement thereto dated 17 December 1998. 8. The applicants pay two thirds of the respondent's costs of the proceeding including reserved costs up to and including the reasons for judgment dated 17 September 1998. 9. There be no order as to costs after 17 September 1998.