State of New South Wales v Loh Min Choo (No 2) [2012] NSWCA 373

State of New South Wales v Loh Min Choo (No 2) [2012] NSWCA 373

The respondents were precluded from arguing that the statutory cap applied separately to each claim because the case at first instance and on appeal had proceeded on the basis that the total of the three claims was subject to the cap, and the point was not raised by cross-appeal, notice of contention, at first instance, or on the appeal. The respondents were also not entitled to interest because payment on 3 January 2012 was within the statutory period as extended by s 36(2) of the Interpretation Act 1987, and in any event the interest point had not been raised at the appeal hearing.

Jurisdiction
Australia
Judgment Date
29 November 2012
Procedural Posture
Appeal Consequential Orders / On the Papers After Judgment on Appeal
Outcome
Consequential orders made in favour of the appellants on the two disputed points raised by the respondents.
Legal Topics
['consequential Orders' 'statutory Cap on Recovery' 'post Judgment Interest' 'restitution After Appeal' 'new Arguments on Appeal']
['civil Procedure' 'appeals' 'property, Stock and Business Agents'] ['consequential Orders' 'statutory Cap on Recovery' 'post Judgment Interest' 'restitution After Appeal' 'new Arguments on Appeal']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal Consequential Orders / On the Papers After Judgment on Appeal

Legal Issues

  1. 1 ['Whether the statutory cap on recovery imposed by s 175 of the Property, Stock and Business Agents Act 2002 applied separately to each claim lodged by the respondents or to the total of the three claims.' "Whether the first appellant's payment of the first instance judgment on 3 January 2012 attracted interest under s 101 of the Civil Procedure Act 2005." 'Whether the respondents were precluded from raising arguments after judgment that were not raised at first instance or on the appeal.']

Ratio Decidendi

The respondents were precluded from arguing that the statutory cap applied separately to each claim because the case at first instance and on appeal had proceeded on the basis that the total of the three claims was subject to the cap, and the point was not raised by cross-appeal, notice of contention, at first instance, or on the appeal. The respondents were also not entitled to interest because payment on 3 January 2012 was within the statutory period as extended by s 36(2) of the Interpretation Act 1987, and in any event the interest point had not been raised at the appeal hearing.

Court Disposition

Consequential orders made in favour of the appellants on the two disputed points raised by the respondents.

Orders

  • ['In lieu of order (2) made on 6 September 2012, set aside the orders made at first instance on 5 December 2011, as amended on 12 January 2012.' 'In lieu of the orders set aside: Judgment for the respondents against the first appellant in the amount of $530,205.' "Order the first appellant to pay the respondents'...