Blain & Anor v Blain Dairying Pty Ltd as trustee of The Blain Trading Trust & Anor

"No joint venture party advanced a case that there was any express or implied term that granted a right to a joint venture party to be paid interest on any unpaid or payable monies. No contractual right to interest exists or at least ruled on. [sic]"

"The Court has no power at common law or in equity to award interest from a date preceding the commencement of proceedings",

referring to Amorosi v Robinson [2024] VSC 466, [157]-[164]. Accordingly, she said, the power to award interest must be found in a statute or statutes, referring to s50 of the County Court Act 1958 and ss58 and 60 of the Supreme Court Act 1986.

1. She said, referring to the quoted paragraphs in Amorosi's case, that neither s58 nor s60 of the Supreme Court Act was "a source of power to award interest to a date that preceded the commencement of the proceedings". She said therefore (paragraph 13) that there was an entitlement to:

(a) interest accrued under s58 of the Supreme Court Act from 28 January 2022 to:

(i) 1 December 2023 for the cost of hay damages, being the date of the amended counterclaim which sought to recover this "sum certain";

(ii) 1 December 2023 for the unpaid invoices debt, being the date of the amended counterclaim for the recovery of this "debt"; and

(iii) 4 May 2022 for the milk cheque debt, being the date of the original counterclaim for the recovery of this "debt or sum certain" where the plaintiffs contended that if the defendants were correct, the amount payable was higher than the amount sought to be recovered by the defendants.

(b) interest accrued under s60 of the Supreme Court Act from:

(i) 2 December 2023 to 15 April 2025 for the cost of hay damages;

(ii) 5 May 2022 to 15 April 2025 for the unpaid invoices debt; and

(iii) 4 May 2022 to 15 April 2025 for the milk cheque debt.

1. Ms Harris on behalf of the plaintiffs conceded that the appropriate interest rate was the 10 per cent fixed under s2 of the Penalty Interest Rates Act 1983.

1. In a note dated 13 May 2025, Mr O'Haire, counsel for the defendants, contended that interest could be awarded pursuant to s58 of the Supreme Court Act 1986 prior to the commencement of the proceeding. He said (paragraph 4) that the judgment of Moore J in Amorosi's case provided "no support for the proposition advanced by the plaintiffs". He said that paragraph [155] of his Honour's judgment addresses whether the debt in that case was "payable by virtue of some written instrument and at a date or time certain", and had no application to this case, where, he said, the plaintiffs conceded at paragraph 10 of their counsel's contentions that the debt was payable otherwise.
2. Mr O'Haire also said that Amorosi's case entailed an award of interest under s60 of the Supreme Court Act from the date of filing of the writ, "not the date of the counterclaim or amended counterclaim".
3. In his primary memorandum on the question of costs dated 2 May 2025, Mr O'Haire sought interest on the damages to be awarded to the first defendant on its counterclaim relative to: the replacement of hay; the amounts payable under invoices 50 and 51; and the unpaid milk income as from 28 January 2022, being the date of commencement of the proceeding by the plaintiffs. As to invoice 49, he sought interest commencing from 25 September 2018, "being the date of the demand for payment of that amount". He relied on ss58 and 60 of the Supreme Court Act 1986 and the 10 per cent rate prescribed under the Penalty Interest Rates Act 1983. He noted that this Court is empowered by s50 of the County Court Act 1958 to exercise those powers granted to the Supreme Court under the Supreme Court Act.
4. Noting that s60 of the Supreme Court Act provided for an award of interest on judgments for debt or damages "from the commencement of the proceeding", he said (paragraph 8):

"The word "proceeding" in s 60(1) means "the vehicle by which the jurisdiction of the court is invoked, and not the subject matter of a justiciable dispute","

citing Braeside Bearings Pty Ltd v HJ Brignell and Associates (Boronia) [1996] VSC 348; [1996] 1 VR 17, 20, per Tadgell JA (with whom Phillips and Callaway JJA concurred). Therefore, he said, despite the judgment's in question being given under a counterclaim, the interest should be calculated from the commencement of the proceeding when the plaintiffs made their claim; a point in time logically and actually substantially prior to the commencement of the counterclaim.

1. He continued (paragraph 9), stating that this remained the case even if the claim for interest were introduced by an amendment. He said in Amorosi v Robinson [2024] VSC 466 Moore J awarded interest on the counterclaim from 25 March 2021 (the date of the writ), notwithstanding that there had been no demand for payment of the relevant amount prior to the filing of an Amended Defence and Counterclaim on 24 February 2023. He referred to paragraphs [153], [164] and [173] of the judgment.
2. He referred to s60(2)(e) of the Supreme Court Act, contending (paragraph 11) that:

"[W]here a demand for payment of a debt or sum certain is first made after a proceeding is commenced:

(a) section 60 applies to the period between the commencement of the proceeding and the demand for payment;

(b) section 58 applies in the period thereafter until the date of judgment".

1. He referred to paragraph [164] of the judgment in Amorosi's case.
2. Turning to invoice 49 in the sum of $44,450.03, he said that the monetary award relative to this invoice was for a debt or sum certain, and therefore within the scope of s58. He said (paragraph 15) that this invoice was rendered to the plaintiffs "under cover of a letter from Maddens [solicitors for the defendants] to Brown McComish [solicitors for the plaintiffs] sent on 25 September 2018". He said this constituted a demand for payment for the purposes of s58(1), and interest under s58 ought to be awarded from the date 25 September 2018.
3. As to the award of damages for the replacement hay, according to Mr O'Haire this was an award of damages and within the scope of s60 of the Supreme Court Act. The defendants sought an award of interest under that section from 28 January 2022, being the date the writ commencing the proceeding was filed.
4. As to the other two invoices numbers 50 and 51 and the amounts awarded relative to unpaid milk income at the end of the joint venture, he said that these amounts were debts or sums certain. He continued (paragraph 24):

"The claims for each of these amounts therefore fall within the "unusual circumstances" referred to in paragraph 11 above, where a demand for payment for a debt or sum certain is first made after the relevant proceedings are commenced."

1. Therefore, he said, interest should be awarded under s60 on those amounts from 28 January 2022, being the date of the writ, to 9 May 2022, the date of the counterclaim, and under s58 thereafter.
2. Responding to the contentions of the plaintiffs' counsel, Mr O'Haire denied the contention that s58 did not create a source of power to award interest to a date prior to the commencement of the proceeding, noting that the section provided for an award of interest back to the date when the debt or sum certain was payable or when demand for its payment was made, which dates would "usually be prior to the commencement of the proceedings".
3. He said that paragraph 155 of the judgment in Amorosi's case had no application to the present dispute in circumstances where it was common ground that the debt or liquidated sum was not payable by virtue of some written instrument.
4. He said Amorosi's case supported his contentions "in that Moore J awarded interest on the counterclaim under s 60 of the Supreme Court Act from the date of the writ ..., not the date of the counterclaim or amended counterclaim" (paragraph 6).
5. As to invoice 49, he said the demand relative to that invoice "was made on 25 September 2018, well prior to the commencement of proceedings".

1. The crucial question here is the date from which interest should be calculated on the various amounts awarded on the counterclaim. The interest rates applicable under both s58 and s60 of the Supreme Court Act are the same. To that extent it seems immaterial which section applies. The distinction is relevant only as to the date from which interest should be held to commence accruing.
2. The two relevant sections of the Supreme Court Act provide as follows:

"58 Interest to be allowed when debts or sums certain recovered

(1) If in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at a rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 or, in respect of any bill of exchange or promissory note, at 2% per annum more than that rate from the time when the debt or sum was payable (if payable by virtue of some written instrument and at a date or time certain) or, if payable otherwise, then from the time when demand of payment was made.

(2) Subsection (1) does not authorise the computation of interest on any bill of exchange or promissory note at a higher rate than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 if there has been no defence pleaded.

(3) A debt or sum payable or a date or time is to be taken to be certain if it has become certain.

1. Interest in proceedings for debt or damages

(1) The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.

(2) Nothing in this section -

(a) authorises the granting of interest on interest;

(b) applies in relation to any sum on which interest is recoverable as of right by virtue of any agreement or otherwise;

(c) affects the damages recoverable for the dishonour of a negotiable instrument;

(d) authorises the allowance of any interest otherwise than by consent on any sum for which judgment is entered or given by consent;

(e) applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59; or

(f) limits the operation of any enactment or rule of law which, apart from this section, provides for the award of interest.

(3) If the damages awarded by the Court or jury include or if the Court in its absolute discretion determines that the damages awarded include any amount for -

(a) compensation in respect of liabilities incurred which do not carry interest as against the person claiming interest;

(b) compensation for loss or damage to be incurred or suffered after the date of the award; or

(c) exemplary or punitive damages -

the Court must not allow interest in respect of any amount so included or in respect of so much of the award as in its opinion represents any such damages.

(4) The Court may request a jury to specify in its verdict any amount included in the verdict in respect of the matters referred to in subsection (3)."

1. It seems to be common ground that each of the amounts awarded on the counterclaim except those relative to replacement hay constitute "a debt or sum certain" for the purposes of s58. As to the amount awarded for replacement hay, it seems to be common ground that such award was one of "damages". On the face of it, therefore, whilst the other three awards would seem to be within the scope of s58, the award relative to the hay could accrue interest only under s60. There was no contention on the part of the defendants that there was any relevant non-statutory entitlement to interest. The defendants' application for awards of interest must therefore be determined solely within the four corners of the two sections of the Supreme Court Act: namely, ss58 and 60.
2. Turning to s58, whilst I have held that the joint venture agreement was partly in writing, and the written portion being the "Farming Agreement" provided for the sharing of general farm expenses 50-50, there was no stipulation in that written portion as to the timing for the payment of shared expenses. Accordingly, even if the amounts invoiced and the milk income could be regarded as "payable by virtue of some written instrument", they were not payable as regards that instrument "at a date or time certain". Therefore, for the purposes of s58(1), they are to be regarded as "payable otherwise", with interest accruing "from the time when demand of payment was made".
3. Since both counsel relied on the judgment of Moore J in Amorosi's case [2024] VSC 466, it is appropriate to say something as to this decision. The plaintiff, Ms Amorosi, and the defendant, her mother, Mrs Robinson, were registered as the proprietors of a parcel of land as tenants in common in equal shares. Ms Amorosi contended that her mother held her share on constructive trust for the plaintiff daughter. The daughter was successful in this claim [16]. The defendant mother, however, succeeded on a restitutionary counterclaim for repayment of $650,000 which she said was paid under a mistake. The various paragraphs from the judgment relied on by counsel in the present case pertained to the mother's interest entitlement relative to the restitutionary award on her counterclaim. In accordance with long-established authority, the restitutionary award, which under the old form of pleading would have been recoverable on a "money count", was treated as a debt or sum certain.
4. Moore J concluded that the $650,000 was payable "otherwise" than "by virtue of some written instrument" [153]-[155]. The Judge rejected a contention that the making of that payment in 2014 "necessarily involved the creation of a written instrument with the consequence that interest was payable from that date" [154]. Therefore:

"Insofar as interest is to be awarded by operation of the above statutory provisions, the earliest date from which interest would be payable is 25 March 2021, being the date when the proceeding was commenced pursuant to s 60." ([2024] VSC 466, [156])

1. His Honour then considered whether there was some non-statutory power to award interest from the earlier date, and concluded that there was not. Moore J therefore awarded interest on the $650,000 dating from 25 March 2021, and pursuant to s60. It is noteworthy that Moore J made that award from the date of the commencement of the proceeding, not from the date of the filing of the counterclaim: a point identified and relied upon by Mr O'Haire on behalf of the defendants.
2. It would seem to follow, therefore, that interest should be regarded as accruing on all amounts awarded on the counterclaim from a date no later than the date of commencement of the proceeding, and not from some later date, being the date of filing the counterclaim or amending the counterclaim.
3. This would appear to be the appropriate treatment for the award of damages relative to replacement hay and for the milk income at the end of the joint venture.
4. As to the three invoices, can it be said that interest should be awarded from a date prior to the commencement of the proceeding on the basis of "demand of payment [having been] made" at some earlier date?
5. Invoice 49 (Court Book 1361) is an orthodox invoice. It is not evident to me why the rendering of an invoice ought not to be regarded as a demand for payment of the sum invoiced, creating an entitlement to interest accruing from that date under s58. Invoice 49 is dated 31 August 2018, and was presumably rendered on or about that time. Darin's evidence-in-chief implicitly conceded receipt of this invoice. He said no amount rendered there was paid by the plaintiff "because we knew the joint venture was ending so we sort of allowed them to make that payment to see how it rolled ..." (Transcript 596, Lines 18-20).
6. The evidence as to invoices 50 and 51 was less clear. As to these later invoices, other things being equal I might have been willing to infer that they were rendered on or around the date which they bear, and therefore constituted demands for the amounts invoiced. However, since Mr O'Haire appeared in his contentions to concede that the evidence did not establish a demand until after the commencement of the proceeding, it would seem that the "unusual circumstances" referred to by Mr O'Haire arise with respect to these invoices as well as the claim for an under-distribution of milk income. I am, however, troubled by the proposition that interest may be awarded as to different periods under s58 for one period, and s60 for another. Section 60(2)(e) provides that nothing in that section "applies in relation to any sum on which interest might be awarded by virtue of section 58 or 59". This means there can be no multiple application of s60 on the one hand and s58 on the other to the same judgment sum. Section 60 provides for the award of interest relative to both debt and damages claims. In my view, therefore, the proper approach is for interest to be awarded on these three items under s60 for the entire period from the commencement of the proceeding.
7. In the absence of evidence as to when the amounts relative to milk income were demanded, the interest on that amount should accrue from the date of commencement of the proceeding.

1. Counsel are requested to agree upon the relevant interest in accordance with these reasons, furnishing a daily rate to enable calculation to the date on which the judgment will be authenticated.

I certify that these 10 pages are a true copy of the reasons for judgment of Judge Macnamara, delivered on 19 May 2025.