Sutherland v Ghougassian & Ors (No. 3) [2012] NSWSC 334

Sutherland v Ghougassian & Ors (No. 3) [2012] NSWSC 334

Although Dr and Mr Ghougassian had a contractual entitlement under clause 3.2 to default interest compounded monthly, their statements of account did not make that claim and permitting it would in substance amend the statements of account in circumstances where there could be an arguable fiduciary profit defence. Interest on the secured advances should therefore be calculated on a compound basis but at the non-default rates of interest.

Jurisdiction
Australia
Judgment Date
30 March 2012
Procedural Posture
Equity Division Corporations List; Procedural and Other Ruling Concerning Taking of Accounts for Moneys Secured by Mortgage / Matter Relisted for Further Argument Before Orders Were Made; Parties Directed to Provide Calculation in Accordance With Reasons
Outcome
Parties directed to bring in a calculation of interest on the advances on a compound basis at the non-default rates of interest.
Legal Topics
['calculation of Interest on Moneys Secured by Mortgage' 'taking of Accounts' 'compound Interest' 'default Interest' 'rectification or Reconsideration Before Orders Made' 'fiduciary Profit']
['mortgage Law' 'equity' 'civil Procedure' 'corporations'] ['calculation of Interest on Moneys Secured by Mortgage' 'taking of Accounts' 'compound Interest' 'default Interest' 'rectification or Reconsideration Before Orders Made' 'fiduciary Profit']

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Procedural Posture

Equity Division Corporations List; Procedural and Other Ruling Concerning Taking of Accounts for Moneys Secured by Mortgage / Matter Relisted for Further Argument Before Orders Were Made; Parties Directed to Provide Calculation in Accordance With Reasons

Legal Issues

  1. 1 ['Whether it was open to Dr and Mr Ghougassian to claim interest in accordance with clause 3.2 of the Deed of Loan after the earlier reasons and before orders were made.' 'Whether interest secured by the mortgage should be calculated as simple interest, compound interest at the non-default rate, or compound interest at default rates.' 'Whether permitting a claim for compound default interest would be unjust where the statements of account did not make that claim and there might be an arguable fiduciary profit defence.']

Ratio Decidendi

Although Dr and Mr Ghougassian had a contractual entitlement under clause 3.2 to default interest compounded monthly, their statements of account did not make that claim and permitting it would in substance amend the statements of account in circumstances where there could be an arguable fiduciary profit defence. Interest on the secured advances should therefore be calculated on a compound basis but at the non-default rates of interest.

Court Disposition

Parties directed to bring in a calculation of interest on the advances on a compound basis at the non-default rates of interest.

Orders

  • ['Direct the parties to provide a calculation in accordance with these reasons.' 'Interest on the advances should be calculated on a compound basis, but at the non-default rates of interest.']