Sayour v Elliott

Interest

1. At [16] of my earlier reasons, I noted that although the plaintiffs had claimed interest on the compound basis (and calculations were handed up as to interest on that basis), the plaintiffs accept that this would be an arid exercise and that the primary claim, if successful, will exhaust the estate. I wrongly understood that the plaintiffs were not pressing any claim for interest in those circumstances. In fact, as made clear when the matter was listed (after judgment) for directions as to the balance of the proceedings, the claim for simple interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) (the Act) has not been abandoned by the second plaintiff - all that it had abandoned was its claim for compound interest at the defaulting trustee rate (on the basis that it would be simpler to award interest pursuant to s 100 of the Act and this would be likely to exhaust the known funds in the estate).
2. When the matter was before me for directions on 9 February 2018, interest calculations were provided by Counsel for the plaintiffs in an amount of around $930,000 (the actual interest calculation from 9 February 2015 - when the moneys were deposited into the Bank of Sydney accounts - to 7 February 2018 at interest rates pursuant to Practice Note SC Gen 16 amounted to $928,057.25, with interest accruing at a rate of $799.0942 a day). The interest rate varied over the period from 6.5% down to 5.5%.

First defendant's submissions

1. The first defendant opposes any awarding of pre-judgment interest but submits that, if such an award is to be made, interest should be calculated as at the date of the start of the proceedings and not as at the date that the funds were withdrawn.
2. In substance, having noted that the award of interest is in the discretion of the Court, the first defendant argues that an award of pre-judgment interest would penalise the first defendant greater than it would compensate the second plaintiff for any loss occasioned by the first defendant holding the money in high interest term deposit accounts.
3. As to the rate of interest, the first defendant notes that where there is a significant difference between court interest rates and commercial or other interest rates, the Court may justify a discretionary reduction of either the rate or the period during which interest is awarded (referring to Clarke v Foodland Stores Pty Ltd [1993] 2 VR 382 at 389, 394, 396 and 398). It is submitted that there is a significant difference between the rates of interest for which Practice Note SC Gen 16 provides (being 4% above the last-published Reserve Bank of Australia cash rate) and any interest rate at which the plaintiffs would be in a position to invest the funds; and that, had the funds remained in bank accounts held by the second plaintiff, the plaintiffs would not have earned the interest rate that is awarded by Practice Note SC Gen 16. It is said that "the funds would have sat in Westpac, or Commonwealth Bank accounts, earning similar, if not less, interest to what the funds have earned whilst in the First Defendant's possession". In this regard, the first defendant says that the first plaintiff did not attempt to use the funds for any particular purpose before Jamil's death; and says that the first plaintiff has not submitted that the funds were to be used for any particular purpose after Jamil's death.
4. Further, the first defendant says that the amounts currently held in the Bank of Sydney account and term deposits include accrued interest, and that this should be the limit to any interest awarded to the plaintiffs.
5. As to the time from which any interest should be awarded, the first defendant relies upon what was said in Heperu Pty Limited v Belle [2009] NSWCA 252, at [164] (per Allsop P, as his Honour then was, with whom Campbell JA and Handley AJA agreed), namely that "[i]t is not the date of the hearing that is relevant, but the date Ms Belle received notice of the claim or when she otherwise became aware that she had property paid for with the misappropriated funds". McCallum J applied Allsop P's reasoning in Perpetual Trustee Company Limited v El-Bayeh (No. 2) [2011] NSWSC 1049 at [27].
6. The first defendant submits that she only became aware that the proceeds held in the Bank of Sydney account and term deposits were to be considered "as the property of" the plaintiffs when I handed down my judgment on 7 February 2018. Alternatively, it is submitted that "proper knowledge of the dispute of the funds" arose when the statement of claim was filed on 9 December 2016 and that would be the appropriate date from which to calculate interest.
7. In relation to the amounts the subject of order 2 made by me on 7 February 2018, the first defendant says that, if the Court were to award pre-judgment interest, the appropriate award in respect of the Bank of Sydney account would be $19,359.26 (representing simple interest at the rate applicable to that account of 1.7% from 9 December 2016 to the judgment date) and that there should be no interest award at all, in respect of the term deposit on top of the amount that has already been accrued.
8. In relation to order 4, the first defendant has calculated the shortfall between the Bank of Sydney account and the term deposits on the one hand and the amount stipulated in order 4 as being $55,651.00. The first defendant says that, if the Court decides to award pre-judgment interest, the appropriate award in respect of order 4 would be $1,103.74 (representing simple interest on $55,651.00 at the interest rate of 1.7% from 9 December 2016 to the judgment date).
9. In relation to order 5 (the monetary amount of which was $300,000), the first defendant says that the appropriate award, if the Court decided to make it, would be $5,950.00 (representing simple interest on $300,000.00 at the interest rate of 1.7% from 9 December 2016 to the judgment date).

Plaintiffs' submissions

1. The plaintiffs emphasise that, prima facie the deceased would be liable to compensate Broadway Plaza for being out of possession of trust money and that simple interest under s 100 of the Act is being sought instead, because that is a cheaper and more efficient way of disposing of the controversy. They accept that the award of interest pursuant to s 100 is within the discretion of the Court but note that this refers to a judicial discretion. They argue that it would not normally be a proper exercise of discretion to withhold the exercise of the power to award interest without some good reason.
2. Insofar as the first defendant's submissions on interest suggest that the award of interest under s 100 would penalise the first defendant, the plaintiffs note that the first defendant is acting in a representative capacity. They submit that the award of s 100 interest would not penalise the first defendant; rather, it would provide compensation against the estate of the deceased, which the first defendant represents. They deny that it would "over-compensate" the second plaintiff.
3. The plaintiffs note that, prior to statutory regimes for interest, a court in equity had (and still has) jurisdiction to award interest against a defaulting fiduciary and that such interest was commonly ordered on a compound basis, referring to Wallersteiner v Moir (No 2) [1975] QB 373, where Lord Denning MR at 388C noted that equity awards interest "whenever money is misused by an executor or a trustee or anyone else in a fiduciary position - who has misapplied the money and made use of it for his own benefit".
4. Further, the plaintiffs note that the underlying rationale of an award of interest is "to compensate a plaintiff for the loss or detriment which he or she has suffered by being kept out of his or her money during the relevant period" (see M.B.P. (S.A.) Pty Ltd v Gogic (1991) 171 CLR 657 at 663 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); and argue that in the present case, the application for interest is directed towards the compensation of the second plaintiff, as trustee of the Sayour Family Trust, for having been kept out of trust money of which it was entitled to have possession.
5. The plaintiffs argue that the exercise of the Court's judicial discretion to determine the rate of interest to be awarded under s 100 is informed by reference to Practice Note SC Gen 16, which refers to a rate that is 4% above the cash rate last published by the Reserve Bank of Australia before the commencement of each six-monthly period from 1 January to 30 June and from 1 July to 31 December in any year. The plaintiffs argue that there is no reason to depart from the Practice Note rate and that the first defendant has advanced no evidence on this question.
6. As to the submission of the first defendant by reference to the accounts in which the money has been held being interest bearing, the plaintiffs contend that the compensatory element of an award of interest should reflect, not merely the gain made by the deceased and his estate, but also the fact that the funds have been unavailable for any use or application by the second plaintiff (or the trust beneficiaries) since at least 9 February 2015. The plaintiffs argue that it is misconceived (and no more than conjecture) for the first defendant to contend that "the funds would have sat in Westpac, or Commonwealth Bank Accounts, earning similar if not less interest" and that the interest earnt from the Bank of Sydney should be sufficient or analogous to an order for interest. It is further submitted that the first defendant's submission that bank interest was only 1.7% serves only to highlight the injustice of her contention (since she was appointed administratrix of the estate over a year ago, yet has advanced no evidence that she took any step to obtain a better interest rate or even make any enquiries on that subject).
7. The plaintiffs also point to the evidence adduced in the course of the hearing as to the use to which such funds, had they been available, may have been applied (referring to the purchase of the Kyle Bay property and the first plaintiff's evidence in chief that he was now being sued for a payment of $1.8m in connection with that purchase made by a company controlled by Mr Deiri, and that that payment was made because the $5 million was unavailable because of the controversy with the first defendant), as well as to the evidence of the first plaintiff's practice in providing material financial assistance to family members (in the form of the purchase of a house for each daughter on marriage - T 37.10-T 37.25). The plaintiffs also point out that the second plaintiff has been involved in "significant litigation arising from the partnership dispute" (proceedings 2016/282940) since about September 2016 and say that it has been incurring significant legal and other expenses in that context.
8. As to the date from which interest should run, the plaintiffs argue that the misconception in the first defendant's submissions (and her reliance on Heperu) is that it assumes that she is being sued as a voluntary recipient who only received notice of the claim of misappropriation when the proceedings were commenced. The plaintiffs submit that the relevant time from which the calculation of interest should run is the time that Jamil misappropriated the funds (the first defendant only having been sued - and she having herself emphasised that she was acting - in a representative capacity).
9. As to the first defendant's submission that she only became aware that the proceeds held in the Bank of Sydney accounts were to be considered as property of the (second) plaintiff when judgment was handed down, it is submitted that this is contrary to: the finding at [99] of my reasons that the three cheques drawn on the partnership account and banked in WBC A/C 238 were moneys held on trust and remained as such when deposited into that account and should be accounted for by the estate; the capacity in which the first defendant was joined in the proceedings; the admissions made by the first defendant in her pleaded defence; the evidence of the first plaintiff as to the meeting the first defendant attended with the first plaintiff and Mr Deiri (see the affidavit of the first plaintiff sworn 25 August 2017 at [17]-[28]); and the first defendant's failure to plead to (and hence tacit admission of) the allegation at [23] of the second amended statement of claim that the $5 million was money had and received by the deceased to the use of the second plaintiff. It is noted that the first defendant admitted that the misappropriated funds, prior to deposit into the Bank of Sydney accounts, were impressed with a trust (see [95] of my reasons) and that the late Jamil was the trustee.
10. The plaintiffs submit that, consistent with the notion that an award of interest should compensate the successful party for the time it has been kept from its money, interest should be calculated from the date of the accrual of the cause of action (referring to Haines v Bendall (1991) 172 CLR 60 at 66 per Mason CJ, Dawson, Toohey and Gaudron JJ). The plaintiffs say that the cause of action arose by at least 9 February 2015 when Jamil deposited two bank cheques into accounts with the Bank of Sydney and thereby misappropriated moneys of the second plaintiff to his own benefit. To the extent that it involves foregoing an interest calculation in respect of earlier periods from which it might be said the funds had been misappropriated, the plaintiffs argue that this is a circumstance in favour of the order proposed by the plaintiffs (as one already involving "a degree of moderation").
11. The plaintiffs also note the evidence before the Court that the parties were "arguing about this money since shortly after the death of Jamil" (and well before the statement of claim was filed).

Determination

1. A successful plaintiff obtaining a monetary judgment will ordinarily be entitled to an award of interest. It is said that the purpose of the discretion in relation to the award of interest is to permit that party to be properly compensated for "a real and practical loss or detriment" it has suffered, restoring it fully to the position in which it would have been but for the defendant's wrongdoing (Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720; [2003] NSWCA 319 at [90] per Tobias JA). In Hexiva Pty Limited v Lederer (No 2) [2007] NSWSC 49, Brereton J observed (at [9]) that in relation to claims for statutory pre-judgment interest under s 100(2) of the Act the courts have taken a less stringent approach to what is required to prove such a claim than in relation to what is necessary to prove a claim for interest as damages: Whereas the cases on statutory pre-judgment interest suggest that loss from late payment will be assumed, the cases in which interest is claimed as damages for deprivation of money suggest that the plaintiff bears the onus of establishing the loss, which is not presumed to arise from the mere withholding of money [Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd & McAuley (1991) 58 SASR 184 (FC); Hobartville Stud Pty Ltd v Union Insurance Co Limited (1991) 25 NSWLR 358, 363-4 (Giles J); Walker v FAI Insurance Limited [1991] TasR 258; (1991) 6 ANZ Ins Cas 61-081, 77,279 (Wright J); Eugenie Holdings Pty Ltd v Stratford (NSWSC, 12 November 1991, Giles J, BC9101436); McBeath v Sheldon (1993) Aust Tort Reports 81-208 (Giles J); affirmed Sheldon v McBeath (1993) Aust Tort Reports 81-209 (NSWCA); State Bank of NSW Limited v Yee (1994) 33 NSWLR 618, 636].
2. I accept the submission made by the plaintiffs that, in the circumstances of the present case, the appropriate date from which interest to compensate the second plaintiff should be calculated is the date on which misappropriation of the funds by their deposit into the Bank of Sydney accounts held in Jamil's name occurred (9 February 2015). The moneys deposited into that account were trust moneys (in some cases by having been designated on the relevant cheques as payable to the Sayour Family Trust and in others, as admitted by the first defendant, by reason of their earlier deposit into an account styled as a trust account). The Bank of Sydney accounts were personal accounts of Jamil and I have found on the balance of probabilities that the first plaintiff did not make a gift of the moneys to him. Jamil was, from at least the time of the deposit of those trust moneys into his personal bank accounts, liable to account for them as trust moneys appropriated to his personal benefit. His estate has now been found liable to account for them and the second plaintiff should be compensated for being out of the funds for the period from 9 February 2015.
3. No question of penalising the first defendant in her personal capacity arises. The estate is simply being required to compensate the second plaintiff for the loss of use of the trust moneys. Nor is there a basis on which to conclude that, had the moneys been properly accounted for by Jamil, the moneys would have remained in the Westpac (or Commonwealth Bank) accounts accruing interest at the rate of 1.7%. (That said, it is difficult to accept the plaintiffs' complaint that no higher rate was obtained by the first defendant for the funds at least from the time that the funds were the subject of freezing orders made by the Court on the plaintiffs' application.)
4. The plaintiffs have abandoned their claim to compound interest (to which, as against a defaulting trustee, they would likely have been entitled). I see no reason not to award the second plaintiff the lesser claim for interest pursuant to s 100 of the Act at the rate contemplated by Practice Note SC Gen 16 from 9 February 2015.

Costs

1. The first defendant accepts that, as judgment has been awarded to the plaintiffs, an award for costs is warranted. However, the first defendant submits that the award for costs should be on a party/party basis limited to the costs incurred by the plaintiff in relation to the relief sought in prayers 1-9 of the second amended statement of claim (noting that the plaintiffs did not succeed in securing the relief sought in prayer 10) and the claims pleaded at [1]-[90] and [103]-[107] in the second amended statement of claim.
2. The plaintiffs argue that there has been substantial success in the second plaintiff establishing its claims and that costs should follow the event on a holistic basis without differentiating between different specific issues.
3. Further, the plaintiffs say that the concession not to press for costs on the indemnity basis (which they maintain is a pragmatic one to avoid wasting further court time) is premised on success by them on their application for s 100 interest from 9 February 2015 at the Practice Note rate (since they expect that an order for interest in the amount sought by the second plaintiff would substantially if not wholly exhaust the known assets of the estate - unless more falls into the estate from the separate dispute as to the Arncliffe project). In the interest of finality, that concession is made regardless of the outcome of the Arncliffe project issue but the plaintiffs do seek an order now that the costs ordered be assessed forthwith.
4. The plaintiffs made clear their position that, if the second plaintiff failed to achieve an interest order substantially in the amount claimed, then the question of indemnity basis of assessment would not be moot and that in that event they would press for an order that the costs ordered in their favour be assessed on the indemnity basis. In that regard, they argue that it is apparent from the facts and circumstances which have already emerged in the course of the hearing and interlocutory hearings in these proceedings that the first defendant did not take responsible steps as a fiduciary officer prudently to consider the estate's liability for the claim. They raise as an example the first defendant's demand for further and better particulars of the claim (which was put on the basis that this might avoid a defence comprised of non-admissions to most allegations) whereas, after the Court's adjudication on the issue and the provision of substantial further and better particulars by the plaintiffs, the first defendant's defence was still pleaded substantially on a non-admission basis.
5. In further support of the submission for indemnity costs (pressed only if the plaintiffs' arguments on the award of interest do not succeed), the plaintiffs tender a copy of an Offer of Settlement dated 18 August, 2017 made by the first defendant through her solicitors. The plaintiffs say this offer in substance "invited a capitulation by the plaintiffs, relied on matters that the first defendant ultimately elected not to pursue (by not bringing forward foreshadowed amendments), demonstrated an unwillingness to engage in any element of compromise, sought to introduce extraneous topics, and exhibited an obvious preoccupation with the first defendant's personal advantage rather than a conscientious regard for her representative function". The plaintiffs complain that the first defendant ran her defence not as an impartial trustee, but as a partisan, personally interested litigant, which was not her proper role and is therefore deserving of an award of indemnity costs. They submit that the fact that the first defendant elected to defend the claim without seeking judicial advice that she was justified in doing so only reinforces that conclusion.

Determination

1. The principles applicable to the exercise of the judicial discretion in relation to the award of costs are well-known. The Court's power to award costs pursuant to s 98(1) of the Act is, subject to the rules of court and to statute, discretionary. It is well recognised that the discretion is a very wide one (Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11; 152 ALR 83 at [22] per Gaudron and Gummow JJ; Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [96] per McColl JA). As with the discretion to award interest, it must be exercised judicially, having regard to its statutory context, established principle and the circumstances of the relevant case. The overriding statutory context in which this discretion falls to be exercised is the requirement mandated under the Act for the just, quick and cheap resolution of the real issues in dispute. Ordinarily, costs follow the event (see r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW)). An order for costs is compensatory in nature, to reflect the vindication of the successful claim or defence thereof, not punitive (Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ; 97 ALR 45; [1990] HCA 59; Ohn v Walton (1995) 36 NSWLR 77 at 79).
2. The basis on which the plaintiffs have indicated they would wish to press the indemnity costs claim does not now arise in light of the decision I have reached as to the award of interest. (Had it arisen, the conduct of the first defendant, as administratrix, in not seeking judicial advice as to the defence of the proceedings and in pressing for further and better particulars only to admit that the funds deposited into the relevant Westpac account were trust funds when paid into an account styled as a trust account, and then to plead a string of non-admissions, would certainly have given me pause and would have tended in favour of an indemnity costs order.)
3. As to the suggestion by the first defendant to the effect that costs should be determined on an issue by issue basis, it has been said on more than one occasion that the discretion to apportion costs is one to be exercised only in the most exceptional of circumstances (see, for example, Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 at 208; (1979) 42 FLR 213; (1979) ATPR 40-141; Stena Rederi Aktiebolag v Austal Ships Sales Pty Ltd [2007] FCA 1141, at [10]-[11]).
4. The circumstances in which apportionment of costs as between different issues may be appropriate are where: in respect of one or more issues the successful party has "unfairly, improperly, or unnecessarily increased the costs" (Waddell J, as his Honour then was, in Windsurfing International Incorporated v Petit (1987) AIPC 90-441 at 37,862); the bulk of the time has been taken on an issue on which the unsuccessful party had succeeded (Mahoney JA in Waters v PC Henderson (Aust) Pty Ltd (Court of Appeal (NSW), 6 July 1994, unrep); Toohey J in Hughes v Western Australian Cricket Association (1986) ATPR 40-748 at [48136]); and where a particular issue or group of issues is clearly dominant or separable (Mahoney JA in Waters; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [6]).
5. Ultimately, fairness should dictate how the costs discretion should be exercised: see Finkelstein and Gordon JJ, her Honour then sitting in the Full Court of the Federal Court, in Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 (at [5]).
6. In the present case I do not consider that an issue by issue approach will produce a result fairer than the application of the general rule that costs follow the event. The issues the subject of the separate determination were intertwined as part of the overall dispute that there had been a misappropriation of trust funds for the deceased's benefit. Posing the common-sense question asked by the Court of Appeal in England in Roache v News Group Newspapers Ltd [1992] TLR 551, as to which is ("[w]ho, as a matter of substance and reality, [has] won?"), the answer must be the plaintiffs. Without pressing the claims now determined in their favour, the misappropriated trust moneys would have remained in the estate's accounts. As Young J, as his Honour then was, said in Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 3) (1998) 30 ACSR 20 (at 22) (having accepted that where there are multiple issues it may be appropriate for the court to assess the costs on each issue or to make a reduction in the costs which the successful party obtains because of that party's losses on separate issues), in an approach later cited by Barrett J (as his Honour then was) (in Golding v Vella (No 2) [2001] NSWSC 731 at [8]): The cases, however, show that it is unwise to be too technical about what is meant by "event" or "issue" in this context. The judgment of Thomas J in Colburt v Beard [1992] 2 QD R 67 gives abundant examples which establish this point. In particular one does not look at issues as if they were pleaders' issues, but approaches the matter with a broad brush. (my emphasis)
7. Finally, as to the plaintiffs' submission that there should be an order that costs be assessable forthwith, one of the circumstances where such an order is recognised to be appropriate is where there is a determination of a discrete issue and the final disposal of the dispute will not be until some time hence (see Fiduciary v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432 at [11]). That is precisely the case here. The issues the subject of separate determination were discrete issues able to be determined separately from the issues in the balance of the proceedings. The balance of the issues in the proceedings will in effect be stayed pending the outcome of the separate proceedings in relation to the Arncliffe project and will not, as I understand it, be pursued by the plaintiffs at all unless more funds come into the estate as a result of that litigation. Therefore, the same issues that informed my decision to determine the trust money misappropriation claims separately from the secret commission and other claims in the proceedings now favour the making of an order that costs of the separate determination of those issues be assessable forthwith.

Orders

1. For the above reasons, I order as follows: 1. Order pursuant to s 100 of the Civil Procedure Act 2005 (NSW) that there be judgment for the second plaintiff against the estate of the late Jamil Moustafa Sayour for interest in the sum of $928,057 on the principal sum of $5,303,080 for the period from 9 February 2015 to 7 February 2018. 2. Order that to the extent that any amount recovered by the second plaintiff from Bank of Sydney Ltd account no 811414 and term deposits 1145895 and 1162098 exceeds the sum of $5,303,080 there be credit for such recovery against the liability under interest in accordance with order 1. 3. Order that the first defendant, out of the assets of the estate of the late Jamil Moustafa Sayour, pay the costs of the plaintiffs of that part of the proceedings relating to the separate determination of the issues determined on 7 February 2018, on the ordinary basis, such costs to be assessable forthwith.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2018