Stenlake v Whipps (No. 3) [2016] NSWSC 1678

Supreme Court New South Wales

Medium Neutral Citation: Stenlake v Whipps (No. 3) [2016] NSWSC 1678 Hearing dates: 28 October 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Equity Before: Slattery J Decision: Interest up to judgment awarded in the sum of $19,060.82. No order as to costs is made in relation to the dispute about interest up to judgment. Catchwords: INTEREST – calculation of interest up to judgment – parties directed to calculate interest up to judgment – dispute as to whether interest up to judgment should be calculated from approximately the time of judgment or a significantly earlier date. Legislation Cited: Civil Procedure Act 2005, s 100 Cases Cited: Stenlake v Whipps [2016] NSWSC 719 Stenlake v Whipps (No. 2) [2016] NSWSC 1520 Category: Costs Parties: Plaintiff: Richard Stenlake Representation: Counsel

Plaintiff: Mr J.M. Ireland QC Defendants: Ms R. Winfield

Solicitor

Plaintiff: Daniel McGirr, McGirr Lawyers Defendants: Sean Christian Radburn, Somerville Laundry Lomax File Number(s): 2014/46275 Publication restriction: No

Judgment 1. This is the Court's third judgment in these proceedings. The Court gave its first judgment on 6 June 2015: Stenlake v Whipps [2016] NSWSC 719. And its second judgment on 28 October 2016: Stenlake v Whipps (No. 2) [2016] NSWSC 1520. 2. This judgment should be read with the Court's previous judgments. Facts, matters and events are referred to in all three judgments in the same way. 3. The Court's first judgment found that the plaintiff, Mr Stenlake was successful in his claim to an equitable charge in the sum of $100,000 over certain real estate he had improved, and known in the proceedings as "the Coraki property". The second judgment dealt with a number of issues that had been left unresolved by the first judgment. Those additional issues included a dispute as to the payment of interest up to judgment and as to costs. 4. In Orders 6 and 7, consequent upon the second judgment, the Court dealt with the question of the payment and calculation of interest up to judgment under Civil Procedure Act 2005, s 100, as follows: "(6) ORDER that the defendants/cross-claimants pay the plaintiff interest under Civil Procedure Act, s 100 on the sum of $80,000 from 29 January 2013 up to 24 August 2016. (7) DIRECT the parties to provide an agreed calculation of the interest ordered pursuant to order (6) to my Associate by 5.00pm on 4 November 2016, so the Court can make final orders as to the quantum of interest in chambers." 1. This third judgment deals with a dispute which has arisen about the calculation of interest ordered pursuant to Order 6 of the second judgment. 2. The parties have agreed that interest calculated on $80,000 pursuant to Civil Procedure Act, s 100 from 30 January 2013 up to 28 October 2016 is $19,060.82. But the Whipps parties contend that judgment for interest up to judgment should not be entered in this sum. They contend that the calculation of interest should not be undertaken from the time of Mr Stenlake's original expenditure on the Coraki property, but rather, from either the date of the hearing in March 2015, or from the date of the first judgment in June 2016, or from the date of the Court making final orders on 28 October 2016. 3. The essence of the Whipps parties' contention is that interest is not payable to Mr Stenlake before any of these later dates, as the amount attributable to the improvements to the Coraki property was only supported by clear evidence and then ascertained no earlier than the hearing in March 2015 and indeed that any sum of money found due to Mr Stenlake only crystalised at the earliest upon pronouncement of judgment on 6 June 2016. The Whipps parties submit that at best any interest due should run from 28 days after the due date for payment of the $80,000, which the Whipps parties point out was 28 October 2016. Therefore they submit that no interest is due. In the alternative, only small amounts of interest are due, calculated from these later dates. 4. Moreover, the Whipps parties contend that Mr Stenlake is not entitled to raise against the Whipps parties any argument as to the use and enjoyment of the Coraki property, because Mr Stenlake abandoned the Coraki property when he cleared it of its contents not long after the deceased's death. In contrast, the Whipps parties say that by their motion they sought to recover the loss of the value of and specific expenditure upon the Mercedes-Benz motor vehicle. The Whipps parties say that the sums that they sought against Mr Stenlake in respect of the vehicle have been misconstrued by Mr Stenlake's submissions. 5. Notwithstanding Mr Stenlake's objections to the Court dealing with this matter on the written submissions provided by the Whipps parties, the Court has nevertheless decided to do so. 6. But the Court does not accept the submissions made by the Whipps parties. The date from when interest should run is already the subject of the Court's second judgment (at [16] – [19]). It is clear from the Court's reasoning in those paragraphs that the award of interest on the $100,000 owing to the plaintiff is "on account of [Mr Stenlake's] long-standing improvements to the Coraki property". And the long-standing nature of that expenditure was the subject of express findings in the first judgment (at [22] and [23]). There is therefore no basis, in my view, for limiting his claim for interest to a later time: when, for example, that claim either came to be quantified, or was made the subject of a final judgment. Mr Stenlake expended his money on the Coraki property long before that, even though the amount finally claimed was only clearly proven shortly before the hearing. 7. In a separate matter, the Court has clarified with the parties that Order 6 was designed to encompass a date for the termination of the calculation of interest, which was coincident with the payment of the $80,000 by the Whipps parties to Mr Stenlake. This payment date was not 24 August 2016 but rather was 28 October 2016, the date up to which the $19,060.82 is calculated. 8. No further orders are required as a result of this judgment other than to enter judgment in respect of interest up to judgment in the sum of $19,060.82. 9. The interest dispute raised by the Whipps parties was resolved quickly on the papers and the Court will make no further order as to costs in relation to it. 10. The Court therefore orders: 1. Judgment for the plaintiff in the sum of $19,060.82, for interest up to judgment under Civil Procedure Act, s 100. 2. The Court notes that it makes no additional order for costs in relation to the issue of the calculation of interest up to judgment, to the intent that each party bear that party's own costs of such issue.