FEDERAL COURT OF AUSTRALIA Angas Securities Limited v Valcorp Australia Pty Ltd (No 2) [2011] FCA 248 Citation: Angas Securities Limited v Valcorp Australia Pty Ltd (No 2) [2011] FCA 248 Parties: ANGAS SECURITIES LIMITED ACN 091 942 728, BARKER MORTGAGES PTY LTD ACN 106 071 676 and KWS CAPITAL PTY LTD ACN 114 209 808 v VALCORP AUSTRALIA PTY LTD ACN 008 147 671 File number: SAD 172 of 2009 Judge: BESANKO J Date of judgment: 23 March 2011 Date of hearing: 17 March 2011 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 9 Counsel for the Applicants: Mr B C Roberts Solicitor for the Applicants: Madsen Rowley Counsel for the Respondent: Mr I C Robertson SC with Ms G C Walker Solicitor for the Respondent: DLA Phillips Fox IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 172 of 2009 BETWEEN: ANGAS SECURITIES LIMITED ACN 091 942 728 First Applicant BARKER MORTGAGES PTY LTD ACN 106 071 676 Second Applicant KWS CAPITAL PTY LTD ACN 114 209 808 Third Applicant AND: VALCORP AUSTRALIA PTY LTD ACN 008 147 671 Respondent JUDGE: BESANKO J DATE OF ORDER: 17 MARCH 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. There be judgment for the first applicant against the respondent for damages in the sum of $973,797.09. 2. There be judgment for the second applicant against the respondent for damages in the sum of $458,510.31. 3. There be judgment for the third applicant against the respondent for damages in the sum of $256,595.15. 4. The respondent pay the applicants' costs of action taxed on a party and party basis. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 172 of 2009 BETWEEN: ANGAS SECURITIES LIMITED ACN 091 942 728 First Applicant BARKER MORTGAGES PTY LTD ACN 106 071 676 Second Applicant KWS CAPITAL PTY LTD ACN 114 209 808 Third Applicant AND: VALCORP AUSTRALIA PTY LTD ACN 008 147 671 Respondent JUDGE: BESANKO J DATE: 23 MARCH 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 I delivered my reasons for judgment in this matter on 8 March 2011 (Angas Securities Limited v Valcorp Australia Pty Ltd [2011] FCA 190). At that time I adjourned the proceeding to 17 March 2011 for the making of final orders. The quantum of the applicants' claim for damages and interest needed to be calculated to the date of judgment. When the proceeding came before me on 17 March 2011 there were two matters in dispute between the parties. I determined those matters on 17 March 2011 and made final orders. These reasons concern the two matters in dispute and my reasons for deciding both points against the respondent. 2 The first dispute concerned the claims by the respective applicants at the trial for application fees, documentation fees, and, in the case of Barker and KWS, exit fees. These claims were part of the applicants' respective claims for damages for loss of opportunity. In other words, the applicants were claiming as damages not only lost interest on alternative loans but also lost fees such as application fees. I referred to the claims for such fees in my reasons for judgment (see [192]). However, in referring to the formula used by the Court in La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4, I referred only to the figures relating to the claims for lost interest (see [214]). 3 The respondent did not argue at trial, and does not argue now, that the result with respect to such lost fees should be any different from the result in respect of the claims for lost interest. No orders have been made in the proceeding and, subject to the matter referred to below, it seemed to me to follow from my reasons that the claims for lost interest and the claims for lost fees should be treated in the same way. 4 After I had delivered my reasons for judgment on 8 March 2011, the applicants filed and served an affidavit of their solicitor deposing to offers which had passed between the parties before trial. At the time the applicants considered that the offers might be relevant to the question of costs. That affidavit was not read before me because the applicants, having performed their calculations, realised that they could not make a claim for indemnity costs. 5 The respondent referred me to O 23 r 8(2) of the Federal Court Rules which provides as follows: (2) If an offer has not been accepted, no communication with respect to the offer is to be made to the Court at the trial or hearing until after all questions of liability and the relief to be granted have been determined. 6 The respondent accepted that O 23 r 8 does not provide a sanction for a breach of the prohibition and that it is a matter for my discretion. 7 I do not think that the fact that the offers were communicated to the Court should prevent me from considering the applicants' claims for the fees. There was never any separate argument about the claim for the fees and to treat the claim in the same way as the claim for lost interest involves no further consideration of the merits. 8 The second dispute concerned the interest to be awarded under s 51A of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court of Australia Act') from 7 April 2010 on the damages to be awarded to the first applicant. As I understood the respondent's submission, it was that interest under s 51A should not be awarded on that part of the amount owing as at 7 April 2010 which comprised the loss of opportunity damages. I reject this submission because the award for loss of opportunity is damages and interest may be awarded on it under s 51A of the Federal Court of Australia Act. 9 The respondent indicated that it agreed with the applicants' figures should I decide the two matters set out above against it. I did decide both points against the respondent and on 17 March 2011 I made the following orders: 1. There be judgment for the first applicant against the respondent for damages in the sum of $973,797.09. 2. There be judgment for the second applicant against the respondent for damages in the sum of $458,510.31. 3. There be judgment for the third applicant against the respondent for damages in the sum of $256,595.15. 4. The respondent pay the applicants' costs of action taxed on a party and party basis. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 23 March 2011