Polon v Dorian (No 2) [2014] NSWSC 681

Supreme Court New South Wales

Medium Neutral Citation: Polon v Dorian (No 2) [2014] NSWSC 681 Hearing dates: 20 May 2014 Decision date: 28 May 2014 Jurisdiction: Common Law Before: Hall J Decision: (1) Judgment entered in favour of the plaintiff against the second and fourth defendants in the amount of $585,176.99 (2) Matter to be re-listed to determine the question of costs Catchwords: COSTS - pre-judgment interest Legislation Cited: Civil Procedure Act 2005 Category: Consequential orders Parties: Hazel Beverley Polon (Plaintiff) David Dorian (First Defendant) Renae Fowler (Second Defendant) Tiernan & Associates Lawyers Pty Ltd (Fourth Defendant) Representation: Counsel: C J Birch SC (Plaintiff) No appearance (First Defendant) D Priestley (Second and Fourth Defendants) Solicitors: TressCox Lawyers (Plaintiff) No appearance (First Defendant) HWL Ebsworth Lawyers (Second and Fourth Defendants) File Number(s): 2010/361702

Judgment 1On 13 May 2014 I delivered judgment in these proceedings: Polon v Dorian [2014] NSWSC 571. 2In the judgment I determined that the plaintiff was entitled to pre-judgment interest upon the bases set out in paragraphs [910] and [911], in accordance with s 100 of the Civil Procedure Act 2005. 3I granted leave to the parties to be heard in relation to the question of pre-judgment interest and costs. This judgment is concerned with the first of those matters, namely, pre-judgment interest. 4Written submissions on behalf of the parties dealing with the above matters were lodged with my Associate. These were supplemented by oral submissions on 20 May 2014. 5On that date I stood the proceedings over to today for the purposes of making final orders. 6On the question of pre-judgment interest, short submissions were made in respect of the date from which such interest should be calculated. Mr Priestley, on behalf of the second and fourth defendants, submitted that interest should be calculated from 19 December 2006, that is, the day after the plaintiff received the last interest payment from the bridging finance scheme. Dr Birch SC, on behalf of the plaintiff, made submissions supporting a calculation from 1 December 2006. It is unnecessary here to set out the oral submissions on that aspect, which are in the transcript of 20 May 2014. 7I have determined that pre-judgment interest should be calculated from the day after the plaintiff received the last interest payment under the bridging finance scheme, notwithstanding the matters to which Dr Birch referred, including, in particular, that that last payment received by the plaintiff was in the amount of $5,000, and therefore represented only a part payment of her contractual entitlement. 8Accordingly, pre-judgment interest on the amount of $357,000, as specified in paragraph [904](iii) of the judgment delivered on 13 May 2014, calculated from 19 December 2006 to today, 28 May 2014, is the amount of $228,176.99. I set out below a table illustrating this calculation: Date from Date to Judgment Sum Days in Period Rate per annum Rate per day Interest accrued 19/12/2006 31/12/2006 $357,000.00 13 8.58% $83.92 $1,090.95 1/01/2007 30/06/2007 $357,000.00 181 8.58% $83.92 $15,189.42 1/07/2007 31/12/2007 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2008 30/06/2008 $357,000.00 182 8.58% $83.92 $15,273.34 1/07/2008 31/12/2008 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2009 30/06/2009 $357,000.00 181 8.58% $83.92 $15,189.42 1/07/2009 31/12/2009 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2010 30/06/2010 $357,000.00 181 8.58% $83.92 $15,189.42 1/07/2010 31/12/2010 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2011 30/06/2011 $357,000.00 181 8.58% $83.92 $15,189.42 1/07/2011 31/12/2011 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2012 30/06/2012 $357,000.00 182 8.58% $83.92 $15,273.34 1/07/2012 31/12/2012 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2013 30/06/2013 $357,000.00 181 8.58% $83.92 $15,189.42 1/07/2013 31/12/2013 $357,000.00 184 8.58% $83.92 $15,441.18 1/01/2014 28/05/2014 $357,000.00 149 8.58% $83.92 $12,504.00