Barescape Pty Limited as trustee for the V's Family Trust & Anor v Bacchus Holdings Pty Limited as trustee for The Bacchus Holdings Trust & Anor

Judgment 1I delivered judgment in these proceedings on 27 August 2012 ("Judgment") following a lengthy hearing and indicated that I would hear the parties as to the form of orders necessary to give effect to the judgment and as to costs. The Plaintiffs/Cross-Defendants, Barescape Pty Limited ("Barescape") and Mr Ventura, and the First Defendant/Cross-Claimant ("Bacchus") and Second Defendant ("Mr Higgins") have provided competing formulations of the orders for which they respectively contended and provided written submissions in support of those orders. The parties identified some 14 issues as to which they were in disagreement, some of which were in relatively narrow scope, which were also addressed in brief oral submissions before me. I deal with those issues below. I have renumbered them so as to eliminate issues which the parties accepted had been duplicated. Issue 1 - Whether declarations should be made 2The parties are at issue as to whether declaratory relief should be given in favour of Bacchus in respect of the Cross-Claim. Bacchus seeks declarations that, relevantly, Barescape beached the partnership deed made on 1 July 2008 ("Partnership Deed") and its fiduciary and contractual obligations to Bacchus and that Mr Ventura breached his fiduciary obligations and contractual obligations of fidelity and good faith to Bacchus. Corresponding relief was sought by the Amended Cross-Claim filed by Bacchus in the proceedings. 3I found in the Judgment that there was a breach of the no profit and no conflict rules by Barescape (Judgment [149]-[150]); that Mr Ventura's conduct in referring functions to Longworth House was in breach of fiduciary duty and in breach of the Partnership Deed (Judgment [189]); that Mr Ventura's obtaining an advantage through the use of Bacchus restaurant's supplier accounts involved a breach of the no profit rule, although he generally reimbursed the Bacchus Partnership for goods ordered on that account (Judgment [199]); that the findings made in respect of breach of fiduciary duty by Barescape also established a breach of its obligation to be "just and faithful" for the purposes of clause 8 of the Partnership Deed (Judgment [204]); that Mr Ventura's involvement in developing the function business at Longworth House in potential competition with Bacchus restaurant and the diversion of functions from Bacchus restaurant to Longworth House breached his duty of good faith and fidelity to the Bacchus Partnership, in the absence of informed consent (Judgment [217]); that Mr Ventura was liable to Bacchus on his guarantee and indemnity given under the Partnership Deed for breaches of the Partnership Deed by Barescape (Judgment [234]) and, in summary, that: "Barescape's involvement as a shareholder in Midfielder and a beneficiary of the Ace's Family Trust and Mr Ventura's involvement with Longworth House were in breach of fiduciary duty owed to Bacchus and a defence of informed consent, waiver or ratification was not established" (Judgment [283]). 4Barescape and Mr Ventura contend that the verdicts which will be given in the proceedings, which will include an order for equitable compensation (for which Bacchus has elected instead of an account of profits) are sufficient to dispose of the proceedings, that the declaratory relief sought by Bacchus serves no purpose and the Court would be slow to make declarations that are superfluous. Bacchus responds that declaratory relief can properly be made for the purpose of vindicating a person's reputation and that Mr Ventura had previously accused Mr Higgins of wrongly advancing the allegations made in the proceedings. 5The Supreme Court has an inherent power to grant declaratory relief, and, in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581, the plurality of the High Court noted that it was neither possible nor desirable to fetter the Court's discretion as to the exercise of that power. In that case, a declaration was made in respect of a denial of natural justice, on the basis that it might redress issues as to the appellant's reputation. There are examples where the Court has made declarations of breach of fiduciary duty by a defendant notwithstanding that other relief is also granted: Cassegrain v Gerard Cassegrain & Co Pty Ltd [2012] NSWSC 834; Johnston v Herrod [2012] QSC 098 at [119]. I consider that such declarations are properly made to record the Court's findings in these proceedings. 6Barescape and Mr Ventura contend that, if the Court is minded to make declarations, it should also make the declarations sought in paragraphs 1, 2 and 5 of the claims for relief in the Amended Statement of Claim. Barescape and Mr Ventura advance that claim, in effect, on the basis that the making of declarations in favour of one party means they should be made in favour of both. However, I have noted above that Bacchus seeks declarations of breach of fiduciary duty which are consistent with declarations which have been granted in the other cases to which I have referred. The declarations sought by Barescape relate to intermediate steps in the determination of the amount due to it on termination of the Bacchus Partnership and Barescape has not articulated any utility from those declarations when it will have judgment as to the amount payable to it. I do not consider that the basis for such declarations is established merely because Bacchus has established its entitlement to declarations as to different matters. Issue 2 - Interest on amount due to Barescape under the Partnership Deed 7The next issue in conflict between the parties is whether interest is payable on the amount due to Barescape under the Partnership Deed. Barescape claims interest on the amount due to it on the sale of its interest in the Bacchus Partnership under clause 21.11(i) of the Partnership Deed. That clause provides that: "If Ventura is not paid any part of the market valuation by the expiry of 42 days from receipt of his dismissal notice, the valuation of his interest in the partnership will bear interest at the rate which is the greater of 12% per annum or 4% above the average of the reference rates known as the 'indicator' or 'base' commercial lending rates published by the four major Australian Banks. Payment of such interest on completion of the purchase is an essential term of this Deed." 8I held that paragraph 21.11 of the Partnership Deed applied on the termination of Mr Ventura's employment as general manager of the Bacchus restaurant (Judgment [75]) and that Barescape had validly invoked the right to a second valuation under clause 21.11(g) of the Partnership Deed. I also observed that Barescape's claim for interest on all amounts payable under clause 21.11(i) of the Partnership Deed must succeed in respect of the amount due and unpaid to Barescape, subject to Bacchus' claim for set-off in respect of damages or compensation recovered by it (Judgment [129]). 9Bacchus contends that Barescape is not entitled to any interest on the value of its partnership interest because its entitlement to be paid that amount has not arisen and will not arise until the Court makes final orders in the proceedings. Bacchus contends that clause 21.11(i) of the Partnership Deed is not engaged because, prior to the making of final orders, there will not be a "market valuation" within the meaning of that clause, because the Court had found that neither of the expert reports obtained by the respective parties was binding. Bacchus notes that the Court had found that no breach of the contractual obligation to make that payment was established because the obligation to make the relevant payment did not arise until the amount was validly determined (Judgment [128]). 10The manner in which commercial contracts should be interpreted is well-established by the case law. Such a contract must be read in a way that will result in a sensible and businesslike meaning, and the meaning of a particular term is to be determined by what the reasonable person in the position of the parties would have understood it to mean: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 at 109; Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at [22]. In my view, clause 21.11(i) of the Partnership Deed applies where Mr Ventura was not paid any part of the market valuation within the specified time period and does not depend on any finding of breach of contractual obligation by Barescape. That market valuation has always existed as a matter capable of determination and the clause applies to require payment of interest on the amount of the market valuation (as now determined by the Court) over the relevant period. Bacchus has had, and Mr Ventura has been deprived of, the use of those monies over the period. I can see no reason why a reasonable person in the position of the parties would have understood that, had there been a delay or failure in the process for determination of the market valuation, Mr Ventura should be deprived of those monies without compensation for the loss of their use, and Bacchus should receive the windfall gain of retaining those monies over a period of years without paying the interest contemplated under the Partnership Deed on them. 11Bacchus contends that, if the Court finds that Barescape was entitled to interest, that interest should be calculated on the value of the partnership share less the value of the equitable compensation awarded to Bacchus on its Amended Cross-Claim. I do not accept that submission, for two reasons. First, the terms of clause 21.11(i) of the Partnership Deed provide for interest on the market valuation not on a lesser amount calculated after set-off. Second, Bacchus claims interest on the amounts due to it, which will be determined prior to the application of any set-off. 12Barescape alternatively contends that it would have been entitled to interest under s 100 of the Supreme Court Act 1970 (NSW). I would have accepted that submission had I not found that interest was due to it under the Partnership Agreement. Issue 3 - Set-off 13An issue also arises between the parties as to whether the amount of the judgment in favour of Barescape on the Statement of Claim should be set off against the amount of the judgment for Bacchus against Barescape and Mr Ventura, and whether there should be a further set-off of the amount payable by Bacchus to Barescape against costs orders in the proceedings. 14Bacchus submits that the amount that it will be required to pay to Barescape in respect of the purchase of the partnership interest should be off-set by the amount which Barescape is due to pay to it as a result of the breaches of duty and of the Partnership Deed established under the Amended Cross-Claim. Barescape resists an order for set-off on the basis that there is no mutuality of parties where Barescape succeeded in its claim against Bacchus under the Partnership Agreement and also in a claim against Mr Higgins under clause 12 of the Partnership Agreement so that judgment in its favour should be entered against both Bacchus and Mr Higgins, whereas Mr Higgins was not party to any Cross-Claim against Barescape and Mr Ventura. 15Section 90(2) of the Civil Procedure Act 2005 (NSW) provides that, if there is a claim by a Plaintiff and a Cross-Claim by a Defendant, the Court may give judgment for the balance only of the sums of money awarded on the respective claims, or may give judgment in respect of each claim. At general law, the Court also has power to order that one judgment be set-off against another: Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660. The rationale of set-off is to avoid multiplicity of actions and it is available, in principle, where there are, on each side of the account, what Cockburn CJ in Stooke v Taylor (1880) 5 QBD 569 at 575 referred to as "liquidated debts, or money demands which can be readily and without difficulty ascertained". In my view, this is a proper case for set-off between the amount payable by Bacchus to Barescape under the Statement of Claim and the amount payable by Barescape to Bacchus under the Cross-Claim. 16However, it does not seem to me that such a set-off is available in respect of the independent claim of Barescape against Mr Higgins under clause 20 of the Partnership Deed. That clause provided that, relevantly, Mr Higgins: "Guarantee[s] the performance of this deed by [Bacchus], and the directors enter into this guarantee on the following conditions: (a) the guarantee hereby given extends to each director indemnifying the other's Partner for any loss under this deed caused by the director's defaulting Partner without the claimant first being required to institute proceedings against the defaulting Partner. (b) the guarantee will continue whilstever there are outstanding obligations by one Partner to another. 17Mr Higgins contends that the guarantor of a monetary obligation can rely on a set-off available to the debtor, subject to the terms of the guarantee: see, for example, Langford Concrete Pty Ltd v Finlay [1978] 1 NSWLR 14; Re Kleiss; Ex parte Kleiss v Capt'n Snooze Pty Ltd (1996) 61 FCR 436; Jinhong Design & Construction Pty Ltd v Yi Nuo Xu [2010] NSWSC 523. However, it seems to me that principle can have no application where the terms of the guarantee involve a promise by Mr Higgins to guarantee the performance of Bacchus' obligations under the Partnership Deed and to indemnify against any loss arising from the failure to comply with those obligations (here, a failure to pay the amount due under clause 21.11 of the Partnership Deed on termination of the Partnership) and are not merely a promise to pay the monies that Barescape was ultimately obliged to pay as a result of such a breach. In my view, an equitable set-off also could not be established in the absence of mutuality and a set-off could not be ordered in respect of Mr Higgins under s 90(2) of the Civil Procedure Act where he has brought no claim against Barescape: compare Equititrust Ltd v Franks [2009] NSWCA 128; (2009) 258 ALR 388 at [61]-[62]. 18Bacchus also submits that payment of any amount due to Barescape and Mr Ventura under the Cross-Claim should be conditional on Barescape and Mr Ventura first paying costs orders made against them in the proceedings. In Australian Beverage Distributors Pty Ltd v Evans & Tate Premium Wines Pty Ltd [2006] NSWSC 560; (2006) 58 ACSR 22 at [68]-[70], White J observed that: "Set-off of judgments for costs in different actions and in different courts has long been allowed, as has the set-off of judgments for costs against judgments for debt or damages. Such set-offs do not depend upon the statutes of set-off, or the general equitable jurisdiction, but on the control a court exercises over its own proceedings. ... This jurisdiction is accurately described in R Derham, The Law of Set-Off, 3 ed, 2003, at paras 2.71-2.83. Although in Edwards v Hope, Brett MR and Bowen LJ (at 926 and 927) described the jurisdiction as an equitable jurisdiction, in truth, it was not a creature of the Court of Chancery, but was applied by all courts. Indeed, it was applied more liberally in the Courts of law than in the Court of Chancery owing to Lord Eldon's care that solicitors should not be deprived of liens for their costs (Puddephatt v Leith (No 2) at 174-179). Dr Derham says at para 2.80 that: 'The basis of the set-off is the general jurisdiction of the Court over the suitors in it', citing Mitchell v Oldfield (1791) 4 Term Rep 123 ; 100 ER 929. There, in a case where each party had recovered judgment against the other for separate debts in separate actions, Lord Kenyon CJ stated that the case did not depend on the statutes of set-off, but the general jurisdiction of the Court over the suitors in it." 19In Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239, Barrett J noted that a corresponding issue was to be addressed by asking: "... what the justice of this case requires by way of exercise of the general jurisdiction of the court over the suitors in it, having regard to the application now before the court." 20On balance, I do not consider that I should order either a set-off, or a stay, of the judgment in favour of Barescape in the proceedings pending a determination of the question of costs. Costs orders have been made in favour of each party in the proceedings from time to time; those costs orders will result in obligations to pay amounts of costs as agreed between the parties or as assessed; the assessment process may in the ordinary course take some time; and it is not presently possible to determine the overall outcome as to costs in the proceedings. A decision of a costs assessor could be appealed in accordance with the provisions of the Legal Profession Act 2004 (NSW) and, in some circumstances, in a further application to the Court. In my view, it would not be appropriate to defer the parties' rights under the principal judgment pending the outcome of any costs assessment, either in respect of the interlocutory steps in the proceedings which are the subject of separate costs orders or the costs of the proceedings generally. Issue 4 - Additional issues raised by Barescape 21Barescape raises several additional issues which it contends are matters which might have been overlooked, which it contends fall under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.17. That rule provides that: "If there is a clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order, or in a certificate, to the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or order." That rule permits the correction of an order which has been entered under UCPR r 36.11. The Court may correct such an error if, had it been drawn to the attention of the Court or the parties at the relevant time, it would have been corrected as a matter of course. The rule also permits correction of an error arising, not from a clerical mistake, but from an accidental slip or omission. The rule extends to permit the correction of an order whose consequences are contrary to those intended by the Court: Newmont Yandal Operations Pty Ltd v The J Aron Corp [2007] NSWCA 195; (2007) 70 NSWLR 411 at [114], [185], [194]. 22Bacchus contends, and I accept, that these matters do not properly involve the application of the slip rule since the Court has not yet made orders, still less any orders inconsistent with its judgment. Barescape's application amounts, in effect, to an attempt to reopen the proceedings, partly to repeat and partly to expand arguments which were previously raised at the hearing and to some extent raise new matters. It is well-established that, except in exceptional circumstances, a party should not be permitted, after a case had been decided, to raise a new argument which it failed to put during the hearing when it had an opportunity to do so: Metwally v University of Wollongong (No 2) [1985] HCA 28; (1985) 60 ALR 68 at [71]. At the same time, there are circumstances in which allowing reopening is appropriate to allow a matter to be addressed by a trial judge which would otherwise be open on appeal, and the Court's discretion whether to permit that course must be exercised in the interests of justice: Twenty-First Australia Inc v Shade [1998] NSWSC 325; Wentworth v Wentworth [1999] NSWSC 638 at [8]; Wentworth v Rogers [2002] NSWSC 921 at [5]; MK and JA Roche Pty Ltd v Metro Edgley Pty Ltd [2004] NSWSC 780; Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No 2) [2007] FCA 1040 at [13]. I do not consider that I should grant leave to reopen in respect of these issues, which had all been determined in the Judgment by reference to the evidence led and the submissions made at the hearing, having regard to the public interest in the finality of litigation. 23I should add that I would not have varied the Judgment in respect of any of these issues even if I had granted leave to reopen argument in respect of them. The first of those issues relates to my finding in Judgment [247] that Bacchus could have held a canapés function for Byth/Wine Selectors, which was referred to Longworth House. Bacchus points out that the liquor licence held by Bacchus under the Liquor Act 1982 (NSW) (Ex P11) provides that: "The licensee shall ensure that signage is located on any servery counter or bar for the information of patrons to indicate that liquor may only be sold or supplied by waiter service to patrons located at licensed seating positions." The sign required under that condition might seem to be inconsistent with the conduct of a function where a larger number of guests stood, were served alcohol and smaller "finger food". However, this licence condition is, in terms, a condition as to signage. Even if that condition is treated as imposing a condition on the operation of the restaurant, that Bacchus will conduct itself in accordance with the sign which is displayed, the evidence before the Court clearly established that Bacchus did not do so, including during the period in which the Bacchus restaurant was under Mr Ventura's management, just as Longworth House appears also to have conducted functions for numbers of persons well in excess of the development consent which it had received. 24I referred at Judgment [143] to an Information Memorandum for the sale of an interest in the Bacchus restaurant, prepared under Mr Ventura's instructions, which noted that Bacchus catered for food and beverage functions including canapés. I do not consider that statement can sensibly be read as indicating that Bacchus was serving canapés at licensed seating positions rather than in a more informal manner. There was also evidence (including from Mrs Ventura) that at least 150 and possibly up to 200 people could be accommodated at Bacchus for canapés functions (Judgment [247]). In my view, Bacchus can establish the loss claimed in respect of this function where it would have in fact conducted the function, irrespective of whether that function would have been consistent with the signage requirements of its liquor licence conditions, or any extended reading of them as imposing operative obligations. 25Second, Barescape notes that I adopted an average figure of $12,078 for non-Longworth redirects, which was the average revenue for functions at Bacchus restaurant. I dealt with this matter in Judgment [276] and noted the manner in which that figure had been derived and that the accountants retained by both Barescape and Bacchus to give expert evidence agreed that that figure was appropriately treated as the value of any diverted function which Bacchus restaurant had lost, in the absence of other information about numbers of guests or spending per guest for functions not held at Longworth House, subject to qualifications to which I there referred. I would not have considered it appropriate to revisit the finding I had made in that regard. As Bacchus pointed out, in principle, the relevant figure which should be adopted in a claim for equitable compensation would have reference to the revenue which would have been derived by Bacchus had it held the function, not the revenue which was derived by Longworth House. The conclusion is reinforced by the issues as to the adequacy of the production of documents by the parties associated with Longworth House to which I referred in the Judgment, which would impede an accurate determination of the revenue derived by Longworth House. I had in any event applied a substantial discount for contingencies in respect of non-Longworth redirects. 26Third, Barescape raises the possibility that the Court did not take into account the fact that the dates for functions for non-Longworth redirects were not known and that it is not possible to know whether Bacchus held a function on the relevant night. I had noted the uncertainties in respect of referrals of function inquiries to Longworth House in Judgment [273] and had applied a substantial discount for vicissitudes of 80%. I would not have altered the very substantial discount for contingencies which I had already allowed in respect of the non-Longworth redirects. Issue 5 - Whether damages should be reduced where the amount of Bacchus revenue from a la carte trade exceeded the revenue from the diverted function 27There is a difference between the parties as to the treatment of occasions on which a function was redirected from Bacchus restaurant to Longworth House, but Bacchus restaurant nonetheless held another function and the revenue of that other function exceeded the amount of the "average revenue" on the basis of which the loss for the diverted function is to be calculated. Bacchus treats the loss suffered in respect of the diversion of that function as nil in its quantification of its loss; Barescape contends that, in effect, the overall damages awarded to Bacchus should be reduced by any additional revenue earned by Bacchus from such a function. 28In my view, each act of diversion of a function was a separate breach and it is appropriate for the loss in respect of each such breach to be calculated separately and then totalled to derive Bacchus' loss. Where Bacchus has earned more on the particular night than it would have earned from the diverted function, then its loss in respect of that breach is nil and not a negative amount. I see no reason why the additional earnings which it made on that occasion should be credited against the different loss arising from the different breach of duty suffered from a different act of diversion of a different function on a different occasion. Alternatively, Barescape put that Bacchus should "do equity" by allowing such a credit against the damages awarded to Bacchus. There is, however, no inequity in Bacchus claiming the entirety of the loss which it has suffered for any particular function which has been diverted and not claiming a loss where it has not suffered one, without allowing an additional credit to Barescape in that situation. Issue 6 - GST 29Barescape contends that Bacchus should not be allowed to keep the GST component which comprises part of the basis on which calculations of its loss had been undertaken where, Barescape contends, Bacchus will not be required to pay GST on the damages. In Barescape's Quantum Submissions in Reply dated 8 June 2012, it noted that GST would need to be adjusted in determining the allowance to be made for actual earnings of Bacchus and contended that no evidence was available to make that analysis. Barescape did not then raise the point now made as to the treatment of tax on an ultimate award of damages. Bacchus responds that the expert evidence as to loss and damage was prepared on the basis of revenue and figures that are GST inclusive, and points to the difficulty in making an adjustment by now removing GST when figures for gross profit margins, variable overhead expenses and the like have been calculated by the expert accountants using GST inclusive figures. 30This matter was not the subject of expert evidence and I cannot make any assumption that the amount of GST paid in respect of a particular function would be a particular amount where items may or may not be GST exempt. In my view, it is not open to Barescape to raise this issue at this late stage, where this would deprive Bacchus of the opportunity to lead expert evidence as to whether any GST adjustment was appropriate, and, if so, its amount. Issue 7 - Offset of Ward function against Westrac function 31Barescape contends that the Ward function warrants an offset for the amount of the Westrac function because, by reason of the breach, Bacchus was placed in a better position. The Ward function relates to a claim for revenue of $825 being the deposit for a wedding function which was cancelled, which I address in Judgment [247]. It appears that the Westrac function was to occur on the same day as the Ward function. In these circumstances, I do not consider that the revenue from the Westrac function is properly an offset to the cancellation fee from the Ward function, because, but for the diversion of the Ward function to Longworth House Bacchus would have been able to retain that lost cancellation fee and nonetheless have earned the revenue from the Westrac function. Issue 8 - Two functions for which a 10% discount was offered 32Barescape contends that the Court should not assume that Bacchus could have negotiated a higher fee for two functions for which Longworth House had offered a 10% discount without losing the business to another competitor in a competitive market. Barescape accepts that this matter was not raised by it in submissions during the hearing. In Judgment [249], I had noted that the discounts offered by Longworth House to Ms Yu and Ms Berriman were "opening offers" and it appeared likely that Bacchus restaurant (which, I interpolate, had an established restaurant and function business) would not have offered that discount. I expressed the preliminary view that I could properly treat that matter as offsetting the reduction in Bacchus' claim in respect of the Byth/Wine Selectors function and indicated that I would give the parties an opportunity to make a further submission as to whether a more precise calculation was required. 33I had held, in the Judgment, that Bacchus should be entitled to recover the full amount claimed, without allowing 10% discount which it would not have offered, although I had left open whether that be done by way of an offset to the reduction in respect of the Byth/Wine Selectors function or by a more precise adjustment. I do not consider that I should grant leave to Barescape to reopen this question to hear further submissions as to whether or not Bacchus' refusal to allow such a discount would have affected its ability to hold those functions which were not previously advanced at the hearing. Issue 9 - Mantovani function 34I had observed in the Judgment that the contract for this function was signed after termination of the Bacchus Partnership and that Bacchus did not draw attention to evidence indicating that this party had previously approached Bacchus restaurant. I held that Bacchus had not established its claim in respect of the function since the relevant conduct occurred after termination of the Bacchus Partnership. Bacchus seeks to reopen the judgment to contend that there was evidence that the initial inquiry was made before termination of the Partnership (Ex D41). Barescape resists any leave for Bacchus to reopen in respect of that function. I do not think it is necessary to determine the question whether to grant leave to reopen where the matter can readily be determined on its merits. 35Even if I had permitted reopening on this issue, I would not have accepted Bacchus' submission in respect of this function, which depend upon an inference being drawn from an email on the evening of 15 September 2009 that the Mantovani wedding was referred to Longworth House on the morning of that day, prior to the termination of Mr Ventura's employment on the afternoon of that day. That inference is not self-evident and was not squarely put to relevant witnesses who could have given evidence relevant to whether it should be drawn. I do not consider that I should draw it. I therefore maintain the finding in the Judgment that Bacchus has not established loss in respect of this function. Issues 10 - Quantification of loss in relation to particular functions 36These issues appear to relate to the quantification of loss suffered in respect of particular functions. 37One of those functions, the Cooper function, related to the use of the wine bar at Longworth House for an informal birthday gathering and involved about 45 guests attending, of which 20 guests would eat at the function and 25 would not, and falls within the category of Longworth redirects. I noted in the Judgment that, doing the best I could with limited evidence, I accepted Bacchus' evidence of revenue of $1,500 for this function, but that an offset should be made for Bacchus earnings from its other revenue on that night. Bacchus now contends that the function should not be treated as an "exclusive use" function and no offset should be allowed for the revenue that Bacchus otherwise earned, on the premise that it could have conducted its usual business as well as held that function. 38Although that function does not strictly fall within Bacchus' exclusive use policy, because not all guests attending were eating, it seems to me highly unlikely that Bacchus could or would have conducted its usual restaurant business or another function where 45 persons were present at this function in the same room of the restaurant as other diners, even if 25 of them were not eating. It may be that Bacchus would have either applied the minimum charge under its exclusive use policy (in which case the function may well not have taken place, at least at Bacchus), or turned down a booking for this function because it would have been less profitable than its usual a la carte business or another function not attended by a large number of guests who would not eat. These complexities were not explored at the hearing and I do not think there is any proper basis for a finding that a deduction should not be made for other revenue earned by Bacchus in calculating the loss in respect of this function. 39The Grant function was a Sunday function which yielded revenue of $6,640. Bacchus contends that an offset should be made by reference to the particular revenue of the other function held at Bacchus on 20 June 2010 rather than by reference to average function revenue. That course seems to be appropriate, where the average function revenue was not restricted to Sunday functions and the revenue earned on this occasion is known. 40Bacchus draws attention to the fact that a function in respect of Hicksons Lawyers was described by Mr Ventura under cross-examination as a board meeting and that the lost revenue figure is limited, indicating that it was a small function. I do not consider that the evidence establishes that it was within Bacchus' exclusive use policy or that it would prevent Bacchus conducting a la carte dining on the evening. Barescape submits that an allowance should be made for the amount of revenue earned on equivalent nights and this is consistent with the Court's finding at Judgment [262]; however, it does not follow that a deduction should be made for revenue earned by Bacchus from a la carte dining, where it would have been possible for it to both earn that revenue and conduct the function which was diverted from it. No deduction should be allowed against the lost revenue for this function. 41Barescape also contends that the Cross-Claimants' calculation of non-Longworth redirects is flawed in that it takes no account of revenue and some account must be taken of the difference between what Bacchus would have earned had it conducted those functions and what it actually earned. The difficulty with that submission is, however, that Barescape and Mr Ventura have diverted the relevant function inquiries to Longworth House; the functions have not eventuated; and little is now known about them including the dates on which they would have proceeded in many cases. In this situation, the Court is entitled to make robust assumptions against the defaulting fiduciary, and I see no reason to further adjust the approach adopted in the judgment or the substantial discount for contingencies which has already been allowed in respect of non-Longworth redirects. 42Barescape points to three other functions where it contends the figures adopted by Bacchus do not reflect the judgment. I do not think I need say more than that the orders prepared by the parties will need to reflect the findings the Court has made, unless an issue has been raised and determined in this further judgment. I have addressed the issue arising in respect of one of those three functions, the Mantovani wedding, above. Issue 12 - Whether interest on Cross-Claim runs from date of deposit or date revenue was received 43There was initially a difference between the parties as to whether interest in respect of amounts allowed to Bacchus should be allowed from the date of the deposit or the date the revenue for the function was received. Bacchus calculated interest on the net profit with regard to the Longworth redirects from the date of payment of the deposit on the basis that later deductions for variable and fixed costs would not be incurred until the date of the respective functions and a la carte revenue was also earned on the later date of the respective functions. Barescape initially contended that interest should not be calculated from the date of the deposit because the Cross-Claimant had not proved its case by establishing when it would have received the revenue, or alternatively that the Cross-Claimants did not quantify their Cross-Claim until January 2012. 44There were further discussions between the parties to seek to resolve this issue after oral submissions and the scope of the dispute may have been narrowed. Barescape now accepts that interest should be allowed from the date the deposit was paid and identifies the question now remaining to be determined as whether interest should be calculated before or after the Bacchus revenue for the night was adopted. Bacchus' position is that interest should be calculated in the manner described in its written submissions of 20 September 2012 and its oral submissions of 9 October, namely by allowing interest on the deposit and then offsetting costs and mitigation amounts against later payments. 45The proposition that interest is awarded in order to put the claimant in the position it would have been if the money was paid when due is well-established: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1540]. In the present case, but for the diversion of a function to Longworth House, payment would generally have been made to Bacchus by a deposit payable at the date of the booking and the balance payable on the date of the function. A calculation of interest from the date on which the function was held would undercompensate Bacchus for its loss, because it would not place it in the position that it would have been in by having use of the deposit for a significant period prior to the time at which it was likely to incur food and staff costs in order to conduct the function, typically the same date on which it would receive the balance of payment. 46In my view, interest should (as Barescape now accepts) be allowed on the amount of the lost profit from the date of payment of the deposit, in the absence of expert evidence providing any basis for the Court to adopt a different course. This should occur by applying interest to the amount of the ultimate loss in respect of each function, as determined in accordance with the Judgment, from that date. I do not consider that it is open to Bacchus to advance the more complex calculation for which it now contends, which would give rise to further issues of fact and methodology as to how particular amounts in respect of costs and mitigation should be taken into account that were not addressed in expert evidence or submissions at the hearing. Issue 13 - Whether to allow interest on a payment of $1,906.08 made during the trial 47Bacchus claims interest on an amount of $1,906.08 in respect of beer taken by Mr Ventura from Bacchus for use at Longworth House and not paid for (Ex P74), a cheque for which was tendered on the last day of the hearing. Bacchus contends that it is entitled to interest on that amount from 18 August 2009, in the amount of $445.53. No party has suggested that this matter was addressed in the submissions as to quantification at the hearing and I do not think that it is appropriate to grant leave to reopen in order to deal with it at this point. I am reinforced in the view that I should not permit this issue to be raised at this stage, in circumstances that I had referred in the Judgment to evidence that Longworth House had possibly overpaid for stock ordered by Bacchus restaurant on its behalf (Judgment [196]) and there would be unfairness in addressing some but not other parts of this issue on a reopening. Issue 14 - Whether the revenue from the Henger function should be offset against the Abraham function 48Barescape points to the fact that the Abraham wedding occurred on the same day as the Henger function, and contends that a credit should be allowed for the full amount of the Abraham function. It appears that this is a specific example of the general issue noted above as to whether a further "credit" can be allowed against Bacchus' loss, when a function has been diverted from Bacchus and another function is held which earns greater revenue. For the reasons indicated above, I accept Bacchus' submission that the proper approach to this matter is to allow a credit for the particular function until the loss of revenue from that function is reduced to zero, but that additional revenue earned on that night cannot be offset against losses arising from diversions of other functions on other occasions. Orders and costs 49I direct the parties to bring in agreed short minutes of order within 14 days to give effect to the Judgment, reflecting the resolution of disputed issues in respect of those orders in the manner I have determined above. The parties should also advise my Associate of suitable dates for a listing at 9.30am, in the week commencing 12 November 2012, when any remaining issues as to the orders and the question of costs can be determined.