Togher & Anor v Alexander & Ors (No.3) [2019] NSWDC 280

District Court New South Wales

Medium Neutral Citation: Togher & Anor v Alexander & Ors (No.3) [2019] NSWDC 280 Hearing dates: On the papers Date of orders: 24 June 2019 Decision date: 24 June 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 39. Catchwords: JUDGMENTS AND ORDERS – pre-judgment interest – discretion to order – time from when post-judgment interest runs – calculation of pre-judgement interest. Legislation Cited: Civil Procedure Act 2005 (NSW) Wrongs Act 1958 (Vic) Cases Cited: Cachia v Hanes (1994) 179 CLR 403 Category: Consequential orders (other than Costs) Parties: Mr Alexander (Claimant) Mr McClure (First Cross-Defendant) Mr Harkness (Second Cross-Defendant) Representation: In person. File Number(s): 2017/166111 Publication restriction: Nil

Judgment

Procedural background 1. On 4 June 2019 I published my reasons for judgment and invited the parties to bring in short minutes of order to give effect to those reasons (Togher & Anor v Alexander & Ors (No.2)[2019] NSWDC 221 at [397]). Specifically, I directed that Mr Alexander had 7 days to submit short minutes (being 11 June) and cross-respondents to his claim had a further 3 days to submit short minutes (being 14 June). 2. I indicated in those reasons my view that the orders should comprise that judgment should be given for Mr Alexander on his cross-claim (filed on 21 December 2017) for the sum of $80,026.97 with interest, and that the second cross-claim of Mr Harkness (and Mr Graeme Peters) (dated 13 April 2018) should be dismissed. 3. From thereafter, even making allowances for the unrepresented status of the litigants, it should have been a short straightforward matter to agree to short minutes reflecting the reasons for judgment (even if the litigants did not agree with the reasons for judgment). Absent anything exceptional, 10 days (in the aggregate) was sufficient time for the parties to agree to, if not delineate the points of difference, on what the dispositive orders should be since, objectively speaking, the real issue was the amount of interest that Mr Alexander should recover on his claim. In this regard, the Court's own website provides a means to parties, and their lawyers, to calculate interest on judgments (http://www.districtcourt.justice.nsw.gov.au/Pages/practice_procedure/interest_rates.aspx). But consistently with the way that the trial and, indeed the litigation generally, was conducted, there was no agreement between the litigants on the orders disposing of the proceeding; notwithstanding the clear indications provided by my reasons for judgment as to what those orders should be. 4. I received proposed short minutes of order from Mr Alexander (who, whilst overseas after judgment had been delivered, had sought an extension of time) (7 June) and objections to those short minutes from Mr McClure and Mr Harkness (jointly) (on 19 June), who sought and were granted an extension of time.