Barclay Pearce Capital Management Pty Ltd v Barclay Pearce Capital Corporate Pty Ltd (No 2)

Legislation Cited: Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited: Barclay Pearce Capital Management Pty Ltd v Barclay Pearce Capital Corporate Pty Ltd [2025] NSWSC 288
Falkner v Bourke (1990) 19 NSWLR 574
Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106

Texts Cited: Practice Note SC Gen 16

Category: Consequential orders

Parties: Barclay Pearce Capital Management Pty Ltd (Plaintiff)
Barclay Pearce Capital Corporate Pty Ltd (First Defendant)
Timothy Raymond Edward Wilson (Second Defendant)

Representation: Counsel:
M Taylor (Plaintiff)
Solicitors:
HWL Ebsworth (Plaintiff)
First and Second Defendant (self-represented)

File Number(s): 2023/290308

JUDGMENT

1. I gave judgment in this matter on 31 March 2025. [1] I shall use the same abbreviations here.

2. I concluded that Management was entitled to judgment against Corporate and Mr Wilson for its claim for unpaid Monthly Fees and the Staff Payments, and that Management was entitled to its costs on a party/party basis under the indemnity in the CAR Agreement. The effect is to entitle Management to judgment for $353,159.63, excluding costs and interest.

3. The parties are in dispute as to appropriate orders to give effect to my reasons. In particular:

4. the defendants dispute that Management was entitled to pre-judgment interest; and

5. the defendants contend that, in view of my finding that the Loan Agreement was not enforceable, Corporate should receive a credit, with interest, for monies paid by it to Management pursuant to the arrangement purportedly recorded in that document.

6. A further issue, arising from the amount of the judgment to which Management is entitled, is whether any costs order can be made having regard to r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

Pre-Judgment Interest

5. Although pre-judgment interest is at the discretion of the Court, [2] it is “almost invariably to be allowed” where a money judgment is obtained. [3] Having succeeded in its claims in relation to the Monthly Fees and the Staff Payments, there is no reason why Management should not have pre-judgment interest on those amounts. Interest will be awarded at the rates set out in Practice Note SC Gen 16 and UCPR r 6.12(8) from the dates on which the invoices issued by Management for the Staff Payments and the relevant Monthly Fees fell due for payment, as sought by Management. This is not, contrary to Mr Wilson’s submission, a “penalty” rate.

Credit of monies paid in relation to Loan Agreement

6. I do not accept the defendants’ submission that there should be a credit of monies paid by Corporate in connection with the Loan Agreement. At no stage in the proceedings did the defendants seek repayment of those monies. That result is not available to the defendants now, nor is it a necessary consequence of my finding that the Loan Agreement was not enforceable by Management according to its terms.

Costs

7. The effect of the Judgment is to entitle Management to a judgment of less than $500,000.

8. Under UCPR r 42.34, if a plaintiff obtains a judgment of less than $500,000 in Supreme Court proceedings, and if the proceedings could have been commenced in the District Court, an order for costs “must not be made” unless this Court is satisfied that the commencement and continuation of the proceedings in this Court was warranted. [4]

9. The operation of UCPR r 42.34 is not displaced by the fact that Management is seeking to enforce a contractual entitlement to indemnity for costs. As I explained in the Judgment, costs are at the discretion of the Court, notwithstanding contractual provisions for payment of costs on a special basis. [5] As r 42.34 is relevant to the exercise of the Court’s discretion, its operation must be considered here.

10. Commencement of the proceedings in this Court was warranted, in circumstances where Management’s claim as originally pleaded exceeded the District Court’s jurisdictional limit. [6]

11. So too was it appropriate for the proceedings to be continued here. Although Management abandoned some aspects of its pleaded case shortly before and during the hearing, such that the amount of its final claim was well within the District Court’s jurisdiction, that does not compel the conclusion that the proceedings could, or should, have been transferred earlier, particularly when the abandonment of those claims led to a quicker and more efficient hearing in this Court.

12. I am satisfied that UCPR r 42.34 does not preclude an order for costs being made. Management should have its costs of the proceedings on a party/party basis.

13. My orders are:

14. Judgment for the plaintiff against the first and second defendants in the sum of $353,159.63;

15. The first and second defendants are to pay pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) to the plaintiff in the sum of $65,848.28; and

16. The first and second defendants are to pay the plaintiff’s costs of the proceedings as agreed or assessed on a party/party basis.

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Endnotes

Barclay Pearce Capital Management Pty Ltd v Barclay Pearce Capital Corporate Pty Ltd [2025] NSWSC 288 (“Judgment”).

Civil Procedure Act 2005 (NSW), s 100.

Miller Heiman Pty Ltd v Sales Principles Pty Ltd [2017] NSWCA 106 at [84] (Macfarlan JA, McColl JA and Sackville AJA agreeing), citing Falkner v Bourke (1990) 19 NSWLR 574 at 576 (Priestley JA).

UCPR, r 42.34(2).

Judgment at [78].

Being $1,250,000: see District Court Act 1973 (NSW) s 4, definition of “jurisdictional limit”.