Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (No 2) [2019] FCAFC 205

Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (No 2) [2019] FCAFC 205

Appellants are entitled to prejudgment interest on their outlay from the date of purchase for the left in hand value loss, not on the basis of progressive depreciation; the Marina parties' conduct in the proceedings below, in breach of statutory procedural obligations, justifies an indemnity costs order in the appellants' favour save for one day; costs of the appeal include those of the application for leave.

Parties
First Appellant: Norbert Andries Wyzenbeek; Second Appellant: Sharon Carmella Wyzenbeek; Third Appellant: Eaglehat Pty Ltd ACN 002 008 933 as Trustee for the N&S Wyzenbeek Family Trust; First Respondent: Australasian Marine Imports Pty Ltd (in Liq) ACN 083 056 893; Second Respondent: Gold Coast City Marina Pty Ltd ACN 083 695 283; Third Respondent: Dean Parker Leigh-Smith; Fourth Respondent: Ryan Anthony Leigh-Smith; Fifth Respondent: Chubb Insurance Australia Ltd; Sixth Respondent: The Underwriters of Lloyds Syndicate 5000 TRV
Jurisdiction
Australia
Judgment Date
25 November 2019
Procedural Posture
Appeal / Judgment on Appeal and Costs
Outcome
Appeal allowed; prior orders set aside and substituted; prejudgment interest and indemnity costs awarded; some proceedings remitted to primary judge.
Legal Topics
Costs, Prejudgment Interest
Civil Procedure Admiralty and Maritime Costs Prejudgment Interest

Case Brief

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Parties

Norbert Andries Wyzenbeek

First Appellant

Sharon Carmella Wyzenbeek

Second Appellant

Eaglehat Pty Ltd ACN 002 008 933 as Trustee for the N&S Wyzenbeek Family Trust

Third Appellant

Australasian Marine Imports Pty Ltd (in Liq) ACN 083 056 893

First Respondent

Gold Coast City Marina Pty Ltd ACN 083 695 283

Second Respondent

Dean Parker Leigh-Smith

Third Respondent

Ryan Anthony Leigh-Smith

Fourth Respondent

Chubb Insurance Australia Ltd

Fifth Respondent

The Underwriters of Lloyds Syndicate 5000 TRV

Sixth Respondent

Procedural Posture

Appeal / Judgment on Appeal and Costs

Legal Issues

  1. 1 On what basis should prejudgment interest be calculated for the appellants' loss?
  2. 2 Should the Marina parties pay all or only 80% of the appellants' costs of the trial, and on what basis?
  3. 3 Should the order that Marina parties and insurers pay the costs of appeal include the costs of the application for leave to appeal?

Ratio Decidendi

Appellants are entitled to prejudgment interest on their outlay from the date of purchase for the left in hand value loss, not on the basis of progressive depreciation; the Marina parties' conduct in the proceedings below, in breach of statutory procedural obligations, justifies an indemnity costs order in the appellants' favour save for one day; costs of the appeal include those of the application for leave.

Court Disposition

Appeal allowed; prior orders set aside and substituted; prejudgment interest and indemnity costs awarded; some proceedings remitted to primary judge.

Orders

  • The appeal be allowed.
  • Order 3 made on 10 October 2018 set aside and substituted with judgment for first and second applicants against first, second, third and fourth respondents in the sum of $2,766,798.91 comprising $1,469,876.88 plus interest of $816,224.76 for left in hand value loss, and $410,677.01 plus interest of $70,020.26 for...