Rupchev v Callow [No. 2] [2007] NSWSC 1283

New South Wales Supreme Court

CITATION : Rupchev v Callow [No. 2] [2007] NSWSC 1283

HEARING DATE(S) : 9/11/07

JUDGMENT DATE : 16 November 2007

JUDGMENT OF : Bell J at 1

DECISION : Make orders in the terms of the draft in annexure A to the short minutes of order filed for Mr Rupchev in Court on 9 November 2007, being paragraphs 1, 2, 3, 4, 4.1, 5 and 6 (6.1 - 6.4) and 7

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005

Bloch v Bloch (1981) 180 CLR 390 CASES CITED : Rupchev v Callow [2007] NSWSC 1097 Screenco Pty Ltd v R L Dew Pty Ltd [2003] NSWCA 319; 58 NSWLR 720

Svjatoslav Rupchev (Plaintiff) PARTIES : Beverley Callow (1st Defendant) Vladimir Rupchev (2nd Defendant)

FILE NUMBER(S) : SC 11861/04

COUNSEL : In Person (1st Defendant) R I Bellamy (2nd Defendant)

SOLICITORS : In Person (1st Defendant) Plowman Legal (2nd Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Friday 16 November 2007

11861/04 Svjatoslav Rupchev v Beverley Callow

JUDGMENT 1 BELL J: On 4 October 2007 I gave judgment determining the amended second cross-claim: Rupchev v Callow [2007] NSWSC 1097. I directed the parties to bring in short minutes with respect to the manner in which the balance of the proceeds of sale are to be distributed, making provision for the proceedings to be re-listed in the event that agreement was not reached with respect to the distribution or with respect to interest and costs.

2 The matter was re-listed on the cross-claimant, Mr Rupchev's, application on 9 November 2007. 3 By notice dated 31 October 2007 the solicitors acting for the cross-defendant, Ms Callow, gave notice that they no longer act for her. 4 Ms Callow appeared in person on 9 November and applied to have the matter adjourned for a period of three months. The application was refused. 5 The claim for interest was pleaded in the amended second cross-claim. Mr Rupchev sought declarations that Ms Callow was liable to make contribution both with respect to the acquisition expenses and the loan repayments. The power to make an order for interest is conferred by s 100 of the Civil Procedure Act 2005. The proceedings are properly characterised as proceedings for the recovery of money for the purposes of the provisions of s 100: Bloch v Bloch (1981) 180 CLR 390. 6 Ms Callow submitted that no order for interest should be made, since during the period when Mr Rupchev was making the mortgage repayments he was in occupation of the Normanhurst property whereas she was required to pay rent for the premises in which she was residing. This was a matter that was advanced as a reason why in the exercise of discretion I should decline to grant Mr Rupchev the relief that he claimed. It is not a consideration which is relevant to Mr Rupchev's claim for interest. The purpose of an order for interest is to allow the successful party to be properly compensated for the loss that he has suffered by being kept out of his money. The principles that are to be applied in determining a claim for interest are collected in the judgments of Handley JA and Tobias JA in Screenco Pty Ltd v R L Dew Pty Ltd [2003] NSWCA 319; 58 NSWLR 720. Mr Rupchev has suffered a real and practical loss by paying the whole of the loan repayments over the period and in my opinion has made good his claim for an order for interest.