AKRON SECURITIES LTD v ILIFFE AND ORS (No 2) [1997] NSWCA 11

AKRON SECURITIES LTD v ILIFFE & ORS (No 2)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COMMERCIAL DIVISION

MASON P, PRIESTLEY and MEAGHER JJA 21 February 1997, 26 June 1997

[1997] NSWCA 11

In Akron Securities Ltd v Iliffe (No 1) (1997) 143 ALR 457 the Court allowed an appeal challenging orders for rescission consequent upon a finding of breach of s52 of the Trade Practices Act. The parties were unable to agree upon calculation of interest or the appropriate consequential orders.

HELD:

(1) The appellant is to be treated as having made good the minimum receipts guarantee as at 1 August 1991 and the respondents as having used that sum to pay the lease residual and loan principal.

(2) The respondent is liable to repay the principal and interest at penalty rates pursuant to s95 Supreme Court Act in respect of the loan and lease agreements. The rate of interest to apply is the contractual rates set out in the lease agreement.

(3) The resultant sum (ie the amount paid by Akron pursuant to the judgment of Rolfe J less (2) above) should carry simple interest at rates pursuant to s95 Supreme Court Act. The aim is to put the parties in the position they should have been when the litigation was completed at first instance.

(4) The costs order below should not be disturbed. However, the appellant is entitled to costs of the appeal.

Mason P and Priestley JA The parties have been unable to agree as to the orders which should flow from the Court's earlier judgment.

Leaving aside costs for the moment, the appellant's Short Minutes proceed as follows:

(1) in lieu of the orders made by Rolfe J, they enter judgment for the appellant against each respondent in a sum which represents

(i) the total of the moneys due under the contracts in respect of the lease account and the loan account. These sums include "default interest" of 19% per annum compounded monthly, as provided for in cl4.4 of the Lease Agreement