Currabubula Holdings & Paola Holdings v State Bank of NSW [1999] NSWSC 535

Reported Decision : [1999] Aust Torts Reports 81-511

New South Wales Supreme Court CITATION : Currabubula Holdings & Paola Holdings v State Bank of NSW [1999] NSWSC 535 revised - 23/06/99 CURRENT JURISDICTION : Equity Division - Commercial List FILE NUMBER(S) : 50268 of 1995 HEARING DATE(S) : 3 May 1999 JUDGMENT DATE : 3 May 1999

Currabubula Holdings Pty Limited (First Plaintiff) PARTIES : Paola Holdings Pty Limited (Second Plaintiff) State Bank of New South Wales Limited (Defendant) JUDGMENT OF : Einstein J at 1

COUNSEL : Plaintiffs: D.E.J. Ryan Defendant: R.B.S. Macfarlan QC and C.M. Harris SOLICITORS : Plaintiffs: Gadens Lawyers Defendant: Mallesons Stephen Jaques CATCHWORDS : Defamation - Bank statements bearing notation 'in liq' - Imputations that customer insolvent and that liquidator appointed to customer - Damages - General principles - Unusual circumstances - No proof of special damage as a result of defamation in respect of which plaintiff sues - Trading company entitled to recover damages in respect of injury to its reputation as such without proof of loss - Damages to be assessed 'at large' - Entitlement of company to recover damages in respect of injury to its trade and goodwill dependent upon proof of damage - Restricted mode of pleading imputations - One group member sues in respect of the publishing on particular dates of bank statements issued to it bearing 'in liq' notation when, as part of the group, such group member first suffers damage in respect of which it does not sue, on earlier dates when similar bank statements are issued to other group members - Failure of plaintiff and of any other group member and of group as a whole to sue in defamation seeking to plead imputations to the effect that upon publication of any bank statements to any group member, the notations conveyed that the whole group was insolvent, or that specified group members were insolvent, or that a liquidator had been appointed to the group, or that a liquidator had been appointed to specified group companies, or that the group businesses were conducted badly or inefficiently, or that all or specified group companies conducted their businesses badly or inefficiently.; Damages - Quantum ; Interest - Claim to interest charges unnecessarily incurred pursuant to breach of contract - Proper measure of interest a question of fact - No factual basis for allowing an award of compound interest.; Costs - Principles - Costs follow the event - First Plaintiff successful in establishing defendant's liability in relation to the contract and defamation claims - Whether the second unsuccessful plaintiff ought to pay the defendant's costs in relation to its claim. ACTS CITED : Supreme Court Act s 94 ABC v Comalco (1986) 12 FCR 510 Andrews v John Fairfax & Sons Limited (1980) 2 NSWLR 225 CASES CITED : Cassell & Co Ltd v Broome [1972] AC 1027 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1844] 1 QB 133 DECISION : Orders made in terms of paragraphs 1, 2, 3 and 4 of the short minutes of order as follows:; 1. The defendant pay to the first plaintiff the amount of $1,748,278.20 calculated in accordance with Annexure A to these orders.; 2. The costs of the application and hearing before His Honour Mr Justice Hunter referred to in His Honour's judgment of 29 September 1997 be costs of the proceedings.; 3. In addition to any previous orders for costs made in favour of the first plaintiff, the defendant pay to the first plaintiff, 90% of the first pliantiff's costs of the proceedings as assessed or agreed.; 4. The second plaintiff pay to the defendant, 20% of the defendant's costs of the proceedings as assessed or agreed.