GARUDA INDONESIAN AIRWAYS v BACKER SPIELVOGEL BATES LIMITED [1995] NSWCA 164

GARUDA INDONESIAN AIRWAYS v BACKER SPIELVOGEL BATES LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 4 September 1995

[1995] NSWCA 164

Sheller JA. This is an application in which the claimant, Garuda Indonesian Airways, seeks a stay of a judgment of his Honour, Judge Patten of 26 June 1995.

The proceedings before Judge Patten were by the respondent, Backer Spielvogel, which claimed to recover an amount alleged to be owing to it by the claimant under an oral agreement made in August 1986 for the provision of advertising campaigns. The work was apparently done, according to the respondent, between 1986 and 1987 and the proceedings commenced on 4 July 1991. The contract was an oral one.

His Honour was satisfied that the agreement was made and the work claimed for done. There seemed to be no issue that the claimant had been paid for it.

The amount claimed was $98,647.24. His Honour gave judgment in the amount of $220,590.52, the difference between the amount claimed and theamount of the verdict being interest.

There has been filed an amended notice of appeal. The grounds of appeal are as follows:

1. The judgment was against the evidence and weight of the evidence.

2. His Honour did not take into account uncontested evidence in support of the defendant.

3. His Honour erred in that he found there was a contract between the plaintiff and the defendant when there was no sufficient evidence of such a contract and its terms.

4. His Honour misdirected himself in that he failed to have regard to the onus of proof.

5. His Honour erred in the exercise of his discretion in awarding interest in that he failed to take into account the plaintiff's delay in commencing the proceedings or prosecuting them.

Mr Cook, who appeared for the claimant, said that the principal ground of appeal was an alleged error by his Honour in the exercise of his discretion in awarding interest and in allowing interest for the period between the time when the work was done and the proceedings were commenced about four years later.