Ostrovsky v Burton [2009] NSWSC 1035

New South Wales Supreme Court

CITATION : Ostrovsky v Burton [2009] NSWSC 1035

HEARING DATE(S) : 7 July 2009

JUDGMENT DATE : 1 October 2009

JURISDICTION : Equity

JUDGMENT OF : Slattery J at 1

DECISION : Judgment for the plaintiff in the sum of $498,656.74.

CATCHWORDS : INTEREST - where equitable relief or fiduciary relationship - calculation of interest up to judgment

LEGISLATION CITED : Civil Procedure Act 2005

CATEGORY : Consequential orders

CASES CITED : Hexiva v Lederer (No 2) [2007] NSWSC 49

Plaintiff: Alex Ostrovsky PARTIES : First Defendant: Lindsay Keith Burton Second Defendant: Construction Industry Advisory Services Pty Ltd

FILE NUMBER(S) : SC 4359/98

COUNSEL : Plaintiff: Ms N Obrart Defendants: No appearance

SOLICITORS : Plaintiff: Kent Attorneys Defendants: No appearance

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

SLATTERY J

THURSDAY 1 OCTOBER 2009

4359/98 ALEX OSTROVSKY v LINDSAY KEITH BURTON & CONSTRUCTION INDUSTRY ADVISORY SERVICES PTY LTD JUDGMENT 1 HIS HONOUR: I gave judgment in these proceedings on 7 July 2009. At that time two matters were left outstanding. The first was that the Court sought information as to whether Mr Williams, the receiver had been paid. On that question Ms Obrart, counsel for the plaintiff has since informed the Court that Mr Williams has been paid by the plaintiff. 2 The second question was for the Court to be provided with the calculation of interest to compute the final sum for the entry of judgment. In my judgment of 7 July 2009 at [44] I found that the plaintiff was entitled to interest on half the value of the subject property, namely $250,000, from 28 July 1999 up to the date of judgment. The prescribed rates of interest under Schedule 5 of the UCPR will ordinarily be allowed under s 100 of the Civil Procedure Act 2005 without the necessity for calling specific evidence: Hexiva v Lederer (No 2) [2007] NSWSC 49. Ms Obrart has provided to the Court a letter dated 30 September 2009 from Rosenfeld Kant & Co Chartered Accountants, which shows that interest from that date up to today based on Schedule 5 rates of interest is $242,868.74. It is not strictly necessary for the letter from Rosenfeld Kant & Co to be tendered as the calculations within it are mathematical logic, not fact. However, the calculation is set out in the next paragraph. 3 The prescribed rate of interest up to judgment under Schedule 5 UCPR between 28 July 1999 and 6 March 2009 varied between 9% and 11%. Between 6 March 2009 and 30 September 2009 the rate was 9%. The Rosenfeld Kant & Co interest calculation on $250,000 for the period 28 July 1999 to 30 September 2009 is set out in their table which follows: