Paltos v Bartier Perry Pty Ltd (No 3) [2021] NSWSC 25

Supreme Court New South Wales

Medium Neutral Citation: Paltos v Bartier Perry Pty Ltd (No 3) [2021] NSWSC 25 Hearing dates: 18 December 2020 Decision date: 29 January 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) Motion dismissed; (2) No order for costs. Catchwords: JUDGMENTS and ORDERS – Amending, varying and setting aside – orders not manifesting intention of Court – rate of pre-judgment interest – motion dismissed. Category: Consequential orders Parties: Dennis Paltos (Plaintiff) Bartier Perry Pty Ltd (ACN 124 690 053) (Defendant) Representation: Counsel: C Freeman (Plaintiff) J Emmett / H Grace (Defendant)

Solicitors: Polczynski Robinson Lawyers (Plaintiff) Yeldham Price O'Brien Lusk Lawyers (Defendant) File Number(s): 2017/301216

Judgment 1. HIS HONOUR: On 1 December 2020, the Court issued orders, which included judgment for the plaintiff. Those orders followed a dispute and discussion as to the most appropriate way to deal with the possibility that, in unrelated proceedings, the plaintiff may be entitled to amounts that, had they been determined prior to the judgment, may have reduced the damages. 2. While that occurrence was and is unlikely, it was a possibility, as a consequence of which undertakings were required of the plaintiff to pay any amount received or allowed to him in those unrelated proceedings, being amounts on account of goodwill relating to the partnership or amounts on account of work in progress paid or credited to the plaintiff in these proceedings. [1] 3. Following the liability judgment, [2] issues arose in relation to the terms of the orders to be made by the Court and, in particular, whether costs should be assessed on an indemnity basis as a result of an offer of compromise said to have been made on about 28 February 2018. Those issues were dealt with in the second judgment and indemnity costs were ordered on and from 1 March 2018. 4. In the course of the second judgment, the Court made an order the effect of which was that pre-judgment interest would be paid in accordance with the rate prescribed in the Supreme Court practice note SC GEN 16. 5. In the first judgment, the Court commented [3] that pre-judgment interest "shall be calculated … at the same rate as prescribed for post-judgment interest". While it was the intention of the Court that all of the issues associated with the judgment to be entered, other than liability and the calculation of the judgment sum, could be and was to be the subject of the leave reserved, the issue associated with pre-judgment interest and the rate upon which it would be calculated was not the subject of submissions, prior to the issuing of the second judgment and the issuing of the orders. 6. No substantive orders issued with the first judgment. The "orders" that issued with the first judgment were an indication of the judgment sum to be ordered and a direction that a minute of order be filed reflecting the reasons for judgment. 7. I make no criticism of either party as to the issue now raised. Each of the parties took the view that, given the comments made by the Court in the first judgment at [437], the minute was required to reflect that pre-judgment interest would be calculated at the same rate as post-judgment interest. 8. Further to the foregoing, it should be noted that no party made submissions on the rate that interest should be calculated prior to the release of the first judgment.