By "you" I mean Burnhill Equipment ANZ?‑‑‑Yes.
What amount did you recover for that?‑‑‑$535,000, or thereabouts.
535,000. That was calculated according to agreement exhibit 52, do you recall?‑‑‑Yes, it was. What happened was I had not seen this document but I just knew that it existed and I spoke to my - the finance manager in the UK, because he dealt with the repossession before.
You received 535,000 and who determined the figure which was paid to Burnhill Equipment Finance by Crosfield; you or the fellow in England?‑‑‑The chap in England told me what to calculate and I just calculated it in accordance with what he said.
You personally did not look at this agreement and work it out whether it was right or wrong?‑‑‑No, not this agreement, no.
Did you receive the money?‑‑‑Yes.
It was credited to - Burnhill got it and applied it to its books?‑‑‑It was, yes.
Yes, thank you, that is all. And has dealt with it accordingly in its books of account?‑‑‑Yes.
And returns to the ASC and so forth when putting the books of account and annual returns into the ASC?‑‑‑I would assume so, yes.
Did you have any part directly in the sale to other parties of the equipment?‑‑‑Not directly, no. We financed some of their equipment.
Somebody else actually sold it on?‑‑‑That's right, they did.
Who was that?‑‑‑Crosfield Electronics. Or the staff from Crosfield.
Crosfield Electronics in London or Australia?‑‑‑No, here, locally.
Was there any paperwork in existence or brought into existence from you, you being Burnhill, transferring title to the equipment to Crosfield Electronics?‑‑‑Well, when they paid us in full they got title to the equipment."
Although Mr Stewart described the transaction as being a sale, I do not think that this was an accurate description of the transaction.
It might on first impression seem wrong to reject Mr Stewart's evidence that what took place between Burnhill and Crosfield was a sale, particularly when he spoke of Crosfield getting title to the Equipment. However, in this transaction Mr
Stewart was not the directing mind and will of the two corporations; he obtained his instructions from England. In Mr Stewart's evidence-in-chief he said that he
"... spoke to the finance manager of Burnhill in the UK to seek advice what, how we should get paid out from the lease agreement and what we should do as far as the equipment is concerned for repossession."
Mr Stewart said that he was aware of an internal arrangement between the companies as to what happened if there had been a default under the lease and it was pursuant to that arrangement that he spoke to the officer in the United Kingdom. He said that Crosfield, as Burnhill's agents, repossessed the Equipment. As appears from the above extract of Mr Stewart's cross-examination, Mr Stewart had not seen the UK Agreement, although he knew an arrangement between the two companies existed, and he made the calculations in accordance with the instructions from Burnhill UK's finance manager. The applicants conducted their case on the basis that the payment of $535,323.57 was pursuant to the terms of the UK Agreement and Mr Stewart's evidence was to that effect. In the absence of any evidence that the UK Agreement was varied or that a decision was made that its provisions should not apply to this particular transaction, it is to the terms of the UK Agreement that one should refer, in my opinion, in order to characterise that transaction.
I consider that the sum of $535,323.57 which Crosfield paid to Burnhill was an Advance Payment in accordance with clause D(2)(b) of the UK Agreement. When, again in accordance with the UK Agreement, Crosfield on-sold some of the Equipment, it did so on Burnhill's behalf and was entitled to retain the proceeds in reduction of the Advance Payment - see clause D(3) of the UK Agreement. In other words, Burnhill's money ($167,200 being the net proceeds of reselling the Equipment) was to be applied by Crosfield towards repayment of the Advance Payment which it had made to Burnhill. This was the only amount which can definitely be identified as money to which Burnhill became entitled. Even then, depending upon other events, the provisions of clause D(5) and D(6) might operate to require Burnhill to repay some or all of the Advance Payment.
Mr Cripps submitted that this issue only arises if clause 18 of the Equipment Lease were held to be a penalty provision and Burnhill had to rely on its claim for unliquidated damages.
The applicants' submission was that even if clause 18 were enforceable, they are entitled, in the calculation of Burnhill's liquidated damages "... to the credit for the sale price of the sale by the Second Respondent to the First Respondent of the [E]quipment."
I have held that clause 18 is not a penalty provision, that there was no sale of the Equipment by Burnhill to Crosfield and that the sum of $535,323.57 paid by Crosfield to Burnhill was an Advance Payment under the UK Agreement. In those circumstances, in my view, the applicants have received all the credit to which they were entitled, namely $167,200 being the proceeds of sale when Crosfield, on behalf of Burnhill and in accordance with the UK Agreement sold part of the Equipment. In those circumstances it would not be necessary to consider the submissions concerning the application of the principles discussed in Munroe Schneider.
However, in paragraph 4.1.1 of their outline of submissions the respondents submit that:
"... the fact Crosfield indemnified Burnhill for any loss it suffered as a result of Quadrascan's default under the lease by purchasing the repossessed equipment under the terms of the agreement between each of their UK parent companies does not affect the Respondent's [Burnhill's] entitlement to recover under the Cross-claim. Either Burnhill may recover the amount outstanding from Quadrascan under the lease by reason of the liquidated damages clause or as general damages and in either event will hold the proceeds of recovery on trust for Crosfield. The payment made by Crosfield can be characterised as either an extension of indemnity or res inter alios acta."
It is to be noted that this submission is based on the indemnity being made under the terms of the agreement. That is common ground between the parties. However, under the terms of the agreement the sequence provided for is payment by Crosfield to Burnhill by way of the Advance Payment followed by resale by Crosfield on Burnhill's behalf or the possibility (but with no obligation on Crosfield's part to do so) that Crosfield may repurchase the Equipment for scrap. Another possibility was that there might be no resale and no repurchase for scrap in which case Burnhill was, as noted above, obliged to repay Crosfield the Advance Payment. I have difficulty reconciling the reference in the above submission to "... purchasing the repossessed equipment ..." and the immediately following reference to this being "... under the terms of the agreement ..." unless one treats this as a reference to Crosfield repurchasing the Equipment for scrap. I have found that on the proper construction of the UK Agreement as applied to the facts there was no such repurchase. However, if I am wrong in that regard it is necessary to consider whether Quadrascan should in the calculation of the liquidated damages in the cross-claim be allowed credit not for the amount of $167,200 eventually realised for the Equipment, but for
the sum of $535,323.57. If so Burnhill's cross-claim must be dismissed.
Mr Cripps, for Burnhill submitted that the arrangement between the two United Kingdom companies had nothing to do with the calculation of the amount of the liquidated damages to which Burnhill is entitled. Mr Cripps submitted that such a receipt could only be taken into account where it arose out of and in consequence of the breach and in the ordinary course of business. For that submission he relied upon the authority of Munroe Schneider. In that case an Australian carpet supplier had sold considerable volumes of carpet to an American trade customer. The American customer later made fraudulent representations to the Australian company to the effect that a former executive of the Australian company had quoted prices which were much lower than in fact had been quoted. The American company further represented, again fraudulently, that on the faith of those quoted prices it in turn had entered into contracts on fine profit margins to supply and fit the carpet at various premises throughout the United States of America. The Australian company accepted the truth of the American company's fraudulent representations, possibly because it transpired that its former executive had engaged in criminal activities. The carpet in question was to be manufactured by a New Zealand company. The Australian company unsuccessfully endeavoured to persuade the New Zealand company to make a reduction in its prices for the particular carpet to be supplied to the American company. Instead, the New Zealand company offered to contribute a total of $400,000 to the Australian company subject to the Australian company conducting an advertising campaign jointly advertising the Australian company and the products of the New Zealand company. The Australian company sued the American
company in this Court for contravention of s.52 of the Act and recovered very substantial damages. At first instance the trial judge refused the American company's submission that the sum of $400,000 should be deducted from the damages awarded. The American company appealed and the Full Court, by a majority dismissed the appeal. Beaumont J, in dissent, said that the document which recorded the terms of the agreement reached between the Australian company and the New Zealand company had to be read as a whole and in the context of the discussion which preceded it. In his Honour's opinion the real consideration for the payment of the sum of $400,000 was the Australian company's unfortunate dealings with the American company and this was the real consideration for the payment of the sum of $400,000 rather than participation in any advertising campaign. In his Honour's opinion, application of the principles discussed in Haines v. Bendall (1991) 172 CLR 60, Ratych v. Bloomer (1990) 69 DLR (4th) 25, Hussey v. Eels [1990] 2 QB 227, Apeco of Canada Ltd v. Windmill Place (1978) 82 DLR (3d) 1, Nadreph v. Willmett & Co [1978] 1 WLR 1537 required the sum of $400,000 to be deducted from the damages awarded. Beaumont J. (at pp.11-12) said:
"The authorities thus distinguish between a continuous dealing, on the one hand, and an independent, collateral or disconnected transaction, on the other. Benefits from the former are to be brought to account in the assessment of damages, whereas an advantage accruing as a consequence of the latter are to be disregarded. In the present case, it is necessary, on the facts, to draw the dividing line. As Mason and Wilson JJ pointed out in Redding v. Lee, the issue turns on the character and purpose of the particular financial benefit which Solomons [the Australian company] received from Feltex NZ [the New Zealand company]."
His Honour then concluded that the character and purpose of the payment by the New Zealand company were not the promotion of its business interests and thus
the receipt of $400,000 did not arise out of a collateral dealing. His Honour concluded that the payment was made in the context of and as part of an overall settlement of the dealings involving the three parties. The fact that if the Australian company received any amount from the American company such amount would be divided equally between the Australian company and the New Zealand company showed, in his Honour's opinion, the interdependence of the dealings between the three parties and the requisite degree of connection between the loss claimed to have been suffered and the receipt of the sum of $400,000. Cases involving benevolence, insurance proceeds and the receipt of social services benefits were to be distinguished from a situation where there was a series of commercial dealings between the operators of three businesses in which two of the aggrieved parties commercially resolved their own differences.
Burchett J., with whom O'Loughlin J. agreed, took a different view. To start with, there was the problem of quantification of the benefit. The evidence was that advertising expenditure had been incurred by the Australian company and the appellant had the onus of proof of the real worth of the contribution of $400,000 in all the circumstances. Next, his Honour construed the relevant settlement agreement as having the result, that out of the damages awarded to the Australian company an amount of $200,000 would have to be repaid to the New Zealand company as its half share in the proceeds recovered from the American company. His Honour thought that implicit in the agreement was a limit of $400,000. If that assumption were incorrect then the advantage to the New Zealand company and the corresponding disadvantage to the Australian company would be even greater. His Honour referred to Vischer (Simonius) & Co v. Holt [1979] 2 NSWLR 322. In that case a company sued its auditors for negligence and also made a claim on its bankers. The bank, while denying liability made an ex gratia payment of Ł75,000 to the company. The question was whether that amount should reduce the damages awarded against the auditors. The New South Wales Court of Appeal held that it should not. The compelling inference was that at least a substantial proportion of that sum, if not all of it, was paid to retain the company's business. As it was impossible to identify on the evidence the amount which, on the defendant's contention, should be deducted, there would be no reduction in the damages awarded. The majority in Munroe Schneider held that precisely similar reasoning to that in Vischer should apply to that case. The New Zealand company was to a significant extent motivated by a desire to make an ex gratia gesture towards an extremely valued customer.
Burchett J. then explored the basis upon which an ex gratia payment of the type made in Vischer could not be appropriated by a wrongdoer in reduction of his own liability. His Honour identified two bases in the following terms (at pp.19-20):
"It may be said that such a payment is not part of the consequences, good and ill, of the defendants' conduct which should be taken into account in order to arrive at the net loss caused by that conduct. Alternatively, it may be said that the payment belongs to a category of payments, such as payments motivated by charity, which it is the policy of the law to disregard in a computation of damages."
His Honour noted that at the time the relevant agreement was entered into both parties were unaware of the American company's fraud. Insofar as the New Zealand company was giving more than what would otherwise be its contribution to
Solomons' Advertising, it was sharing in what it had been deceived into accepting as a loss produced by the American company's reliance on the original quotations. To reduce the damages in those circumstances would be to enable the American company to rely on a payment procured by its own fraud. Alternatively that fraud produced in the New Zealand company a mistaken view and the moneys were paid under a mistake of fact and were recoverable (from the Australian company) by the New Zealand company. Burchett J. then comprehensively reviewed the relevant authorities. His Honour identified National Insurance Co of New Zealand Ltd v. Espagne (1961) 105 CLR 569 as a "focal point" identified as such in Redding v. Lee (1983) 151 CLR 117 at p.135 and relied upon by the House of Lords in Parry v. Cleaver [1970] AC 1 and again in Smoker v. London Fire and Civil Defence Authority [1991] 2 WLR 1052. At p.21 of his judgment, Burchett J. set out the following passage from the judgment of Dixon C.J. in Espagne:
"There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely, they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may by enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence. If a fund is raised by subscription for the benefit of a badly injured neighbour, obviously this cannot operate in relief of the liability of a man who negligently caused the injury. So in a contract of accident insurance; where, in the absence of special stipulation the insurer will not succeed by subrogation or otherwise to the insured's right of recourse against others in the case of injury by their negligence. But for the reason given it does not follow that the negligent parties can treat the
insurance as operating in relief of their liability. It was effected by the money of the plaintiff for his own benefit in the event of an accident, a benefit both independent of and cumulative upon what ever right of redress against others might arise out of the circumstances of the accident."
Burchett J. considered the question whether the principles expounded in Espagne applied merely to actions for damages for personal injuries and after comprehensively reviewing the authorities came to the conclusion that the principles were not so limited and that they applied generally. It was, his Honour considered, ludicrous to suggest that the New Zealand company supposed that it was paying out its own money to reduce the liability of the American company which had created the loss by fraud or that the Australian company received it in that character. This was especially the case when it was appreciated that the New Zealand company was itself a victim of the fraud. To the extent that the payment was made through more normal commercial considerations the consequence was once again that the payment should not be deducted from the damages. British Westinghouse Electric & Manufacturing Co Ltd v. Underground Electric Railways Co of London Ltd [1912] AC 673 was to be distinguished because in that case the benefit (the superiority of the substitutive turbines over those in the original contract) arose out of the act of mitigation itself, was directly related to the loss and in mitigation of it. If the New Zealand company had agreed to reduce its price to the Australian company then (subject to the Espagne point) the British Westinghouse principle would have been applicable. The majority of the Full Court concluded that the New Zealand company's refusal to amend the price denied any direct link between the transaction and the damages sustained. The arrangement was thus a collateral transaction involving separate obligations in respect
of advertising and promotion. Burchett J. concluded:
"As the Court of Appeal of New South Wales held in Vischer, the onus is on the appellants to disentangle, from a composite transaction, so much of it as can properly be utilised in diminution of the damages they must pay. If they cannot do so, it is not possible for the transaction to be set off against the damages otherwise due. In the present case, I think that whichever complexion is dominant, the transaction in question is of no avail to the appellants. But even if that be wrong, and in one aspect the transaction could raise a valid ground of reduction of damages, I do not think it would be possible, on the evidence, to fix upon any amount as the appropriate reduction. To do so on the basis of British Westinghouse would require, in the light of the reasoning of Viscount Haldane LC, an examination of the whole of the transaction to see whether there evolved from it a profit which should be taken into account. That would necessitate an examination of the advertising and of its consequences."
In my view the principles of law identified by Burchett J. in the cases which his Honour reviewed would apply in the present matter, on the assumption that this issue arises. The character and purpose of the payment made by Crosfield to Burnhill was, in my view, to provide on an interim basis, an indemnity to Burnhill. The payment was made (on the assumption, contrary to my view, that there was a sale) in the context of a sale of the Equipment to Crosfield for scrap. But there was no guarantee that Burnhill would retain the benefit of the purchase price in full or even in part. At the 31 March 1994 Crosfield was entitled to an account with the possibility of Burnhill having to repay moneys to it. There was simply no evidence on this aspect. The payment made by Crosfield to Burnhill was an advantage conferred on it not only independently of the existence in it of a right of redress against Quadrascan or Messrs Camfield and Kennedy but so that it would have the benefit of it and enforce that right. There was no evidence that the payment was made in relief of any liability on the part of the applicants fully to compensate Burnhill. In my opinion the liquidated damages payable to Burnhill should be calculated on the basis
that $167,200.00 should be credited to Quadrascan. On the proper construction of clause 18 of the Equipment Lease, the sum of $535,323.57 which passed from Crosfield to Burnhill had the character of an interim indemnity only and was subject to adjustment between those parties. The correct figure to be credited to Quadrascan is $167,200.00.
The quantum of the cross-claim
Mr Stewart gave particulars of the claim for $389,277.46 which Burnhill makes upon Quadrascan. The first item in that claim is the sum of $125,000 being the outstanding rental payments to which I have referred above. The next item was interest for late payment or non-payment of rentals and Mr Stewart explained how this was calculated at $5,520. It should be noted that this was some $400 less than the corresponding figure which found its way into the respondents' outline of submissions. Mr Stewart was not cross-examined in respect of that item or in fact in respect of any of these items. The third, and by far the largest item was $417,409.31 being the unpaid balance of total rent for the remainder of the term of the Equipment Lease (after rebating to arrive at net present value). Mr Stewart also gave evidence of his calculations of this sum and tendered those calculations (Exhibit 54). Then Mr Stewart gave evidence that Burnhill incurred certain costs and expenses of repossession which he said were between $7,000 or $8,000. The amount claimed under this heading is $8,148.15. Burnhill credited an amount of $167,200 against the total of the above sums being the proceeds of sale of part of the Equipment. Mr Stewart gave evidence that the interfaces or upgrades to the scanner had not been repossessed. Crosfield had managed to sell the Studio 9500 and certain software but had not been able to sell the Studiolink or the Pixelink. He was not cross-examined in that regard.
Burnhill next makes a claim for stamp duty in the sum of $9,937.06. In its defence to cross-claim, Quadrascan admits liability for stamp duty but only to the extent of one-third. There was some evidence (in Exhibit R) that Quadrascan and Crosfield had agreed that Quadrascan would pay only one-third of the stamp duty and Mr Camfield gave like evidence. It may be that $9937.06 represents one-third of the stamp duty paid on the Equipment Lease. In any event, the applicants in their outline of written submissions filed shortly prior to the hearing admitted liability for this item and the other items referred to below, including those in Crosfield's cross-claim with one exception. Mr McPhee, in opening, confirmed that this was the applicants' position i.e. that they would seek to set-off their claims in the principal application against these "ancillary claims". This was confirmed by Mr McPhee in his closing address. The exception was an item of $1249.00 in respect of a heat sink. Quadrascan's position was that it had paid for this. There was no proof that the goods remain unpaid for. Mr Cripps in his closing address, said that enquiries would be made and that if the price for the heat sink had been paid then the claim would be withdrawn. Nothing further was said about the matter. In those circumstances, I hold that Crosfield having been put to proof of its entitlement to this amount has not established its claim to the sum of $1249.00.
Accordingly, there will be judgment for Burnhill in its cross-claim against Quadrascan calculated as follows:
(a) outstanding rental payments $125,000.00
(b) interest for late payment or non-payment
of rentals $ 5,520.00
(c) unpaid balance of total rent for remainder
of term of lease (after rebating) $417,409.31
(d) Burnhill's costs and expenses in repossessing
the Equipment $ 8,148.15
$556,077.46
Less proceeds of sale $167,200.00
$388,877.46
Stamp duty $ 9,937.06
TOTAL $398,814.52
In my view Burnhill is entitled to interest on the sum of $388,877.46 from two days after the date of the demand made by its solicitors by their faxed letter of 2 November 1993 to the date of judgment. I consider that an appropriate rate of interest would be that from time to time applicable under the Federal Court Rules in respect of judgments. The relevant rates were 12% per annum until 31 December 1993 and 10% per annum thereafter. On my calculations, that interest is $61,004.92. Accordingly there will be judgment for Burnhill against Quadrascan for $459,819.44 inclusive of interest.
Burnhill's claim against Messrs Camfield and Kennedy as guarantors
Burnhill's claim against Messrs Camfield and Kennedy is for the sum of $213,330 being the limit provided in the Guarantee on the extent to which they guarantee the obligations of Quadrascan under the Equipment Lease.
Messrs Camfield and Kennedy admit entering into the Guarantee but do not admit that the effect of the guarantee is as pleaded in the cross-claim. They say that they guaranteed payments to Burnhill to a total sum of $426,660 with a limit on liability for each guarantor in an amount of $213,330. It is not necessary for me to deal with that joinder of issue as Burnhill has made it clear that it is seeking only $213,330 from Messrs Camfield and Kennedy.
By way of further defence to the cross-claim based on the Guarantee Messrs Camfield and Kennedy say that it was a further term of the Guarantee that their liability was a liability to pay on demand and that no demand has been made against them in accordance with the Guarantee or otherwise. The short answer to that plea is the demand contained in the letter dated 2 November 1993 from Messrs Allen Allen & Hemsley to Messrs Michell Sillar McPhee (Exhibit 64). This is probably why neither counsel addressed any submissions in respect of that issue. There will be judgment for Burnhill in its cross-claim against Messrs Camfield and Kennedy in the sum of $213,330. Burnhill claims interest on that amount. It calculates its entitlement at the rate of 9.25% per annum to 12 September 1994 and 10% per annum between 13 September 1994 and 30 September 1994. Thereafter Burnhill claims interest at a daily rate of $81.83. I propose to allow interest at 9.25% per annum for the initial period to 12 September 1994 and 10% per annum thereafter to today's date. Interest will be added at those rates from 4 November 1993. On my calculations the interest amounts to $31,415.53. However, Burnhill should give the guarantors credit, in respect of that interest liability, for any interest recovered from Quadrascan.
Finally, in its cross-claim Burnhill seeks a declaration that it is entitled to all its legal costs of and incidental to Quadrascan's breach of the Equipment Lease on a full indemnity basis. For this it relies upon clause 27 of the Equipment Lease which is in the following terms:
"27. The Lessee must pay:
(a) all stamp, transaction, registration, financial institutions, debit and other duties and taxes (including fines and penalties) which may be payable or determined to be payable in relation to the execution, delivery, performance or enforcement of this lease or any payment or receipt or other transaction contemplated by this lease (except to the extent that any such payment by the Lessee is specifically forbidden by the law of the place where such payment is to be made); and
(b) all costs, expenses, duties and outgoings of or incidental to:
(i) any breach or default by the Lessee under this lease; or
(ii) the exercise or attempted exercise of any right, power, privilege, authority or remedy of the Lessor under or by virtue of this lease,
including but not limited to the cost of registration, repairs, maintenance, servicing or storage of the Goods, the fees of all professional consultants reasonably incurred by the Lessor and legal costs on a full indemnity basis."
This issue was not the subject of any submissions from any party.
As Gummow J observed in Elders Trustee & Executor Co Ltd v. E.G. Reeves Pty Ltd (unreported, Judgment No. 32 of 1988 at p.7) the meaning of an express covenant of this type is a question for interpretation in the particular case. His Honour was considering a similar clause in a memorandum of mortgage of lands which were the subject of registration under the Real Property Act 1900 (NSW).
By reason of what was said by the Full Court of this Court when dismissing the appeal from that judgment: Elders Trustee & Executor Co Ltd v. E.G. Reeves Pty Ltd (1988) 84 ALR 734 particularly at pp.742-743, I do not consider that it makes any difference that this clause is contained in a deed of guarantee and indemnity and not a mortgage.
As a matter of construction, in my view, the legal costs incurred by Burnhill in defending the principal application do not fall within clause 27(b). In those circumstances it will be entitled only to party and party costs in that application.
However, I consider that Burnhill's costs in respect of its cross-claim do fall within clause 27(b) and that it is entitled to have those costs on a full indemnity basis. The next question is what "a full indemnity basis" means. I propose to follow the terms of the order made by the Full Court in Elders Trustee and to direct that an account be taken before the District Registrar of all items of costs and expenses of Burnhill in respect of its cross-claim, such account to be taken on a full indemnity basis which is to be understood as not including items unreasonably included or for costs and expenses of an unreasonable amount. Subject to any further directions by the District Registrar, the matter is to be conducted by the preparation by Burnhill of an itemised list of its claims for costs and expenses in respect of the cross-claim. The list should include the date upon which it is alleged each item was paid. It should be exhibited to and verified by affidavit. The affidavits and exhibits should then be filed and served on the respondents to the cross-claim. As Gummow J. said at first instance in the Elders Trustee case, an effort should be made between the solicitors for the parties to isolate any particular areas of disagreement between them. The District Registrar should then certify the sum found on the accounting. The account should only be in respect of costs and expenses up to today's date. Costs and expenses of the account itself may be agreed between the parties or in lieu thereof will require further consideration by the Court.
Crosfield's cross-claim against Quadrascan
Quadrascan admits liability for the sum of $12,666.64 maintenance fees. Quadrascan also admits liability for interest at the rate of 21% per annum in respect of the above maintenance fees. This has been calculated in respect of the instalments due on 26 September 1991, 26 October 1991, 26 November 1991 and 26 December 1991 from those respective dates to the date of judgment namely 18 May 1995. The amount resulting is $9346.39. There will be judgment for Crosfield in its cross-claim against Quadrascan for the sum of $22,013.03 with costs to be taxed.
I certify that this and the preceding
one hundred and eighty-six (187) pages
are a true copy of the Reasons for Judgment
of Justice Carr.
Associate:
Date: 18 May 1995
Counsel for the Applicant: Mr M.J.McPhee and Mr P.E.Harris (to 14 December 1994) and Mr C.J.Ryall (from 8 February 1995 onwards)
Solicitors for the Applicant: Messrs Michell Sillar McPhee
Counsel for the Respondent: Mr H.Sperling Q.C. (until 22 February 1995), Mr J.Cripps Q.C. (from 9 February 1995 onwards) and Mr J.Halley
Solicitors for the Respondent: Messrs Allen Allen and Hemsley
Date of Hearing: 28-30 November, 1-2, 5-9, 12-14 December,
1994, 8-10, 13-17, 20-24, 27-28 February
1995, 1,2, 15-17 March 1995
Date of Judgment: 18 May 1995