Bernley Corporation Pty Ltd v AFR Group Pty Ltd t/as Anytime Fitness Randwick (No.2) [2019] NSWDC 366

District Court New South Wales

Medium Neutral Citation: Bernley Corporation Pty Ltd v AFR Group Pty Ltd t/as Anytime Fitness Randwick (No.2) [2019] NSWDC 366 Hearing dates: On the papers Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 54. Catchwords: PRACTICE AND PROCEDURE – claim for pre-judgment interest – judgment to recover money – loan advances where no date for repayment – cause of action accrues on date of advance – whether interest should commence to run from date of demand for repayment – whether judgment creditor has sustained actual loss.

COSTS – joinder of two (related) plaintiffs – uncertainty as to identity of creditor – uncertainty contributed to by conduct of defendant – first plaintiff's claim abandoned at trial – whether defendant entitled to costs against plaintiff whose claim was abandoned – offer of settlement – whether relevant to exercise of discretion. Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 Ogilvie v Adams [1981] VR 1041 Ottavio v Hayvio [2011] NSWSC 1125 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd (No.2) [2018] NSWCA 40 Screenco Pty Ltd v R L Dew Pty Ltd (2003) 58 NSWLR 720 Category: Costs Parties: Bernley Corporation Pty Ltd (First Plaintiff) Mr Turner (Second Plaintiff) AFR Group Pty Ltd (Defendant) Representation: Counsel: Mr A Di Francesco (Plaintiff) Mr D Parish (Defendant)