Miletich v Murchie (No 2) [2012] FCA 1178

Miletich v Murchie (No 2) [2012] FCA 1178

Where a plaintiff settles with some respondents for a mixed lump sum (including damages and interest), and proceedings continue against remaining respondents, judgment should be given for the difference between total damages plus full interest and the lump sum settlement already received, thus compensating for the total loss as required by statute.

Parties
First Applicant: Kathleen Phyllis Miletich; Second Applicant: Adrian Mark Miletich; Third Applicant: Kalel Enterprises Pty Limited (ACN 121 109 108); First Respondent: Alan Murchie; Second Respondent: Wilmot Murchie Pty Limited (ACN 103 108 603); Third Respondent: 83 East Pty Limited (ACN 094 852 507) (in liquidation); Fourth Respondent: Stephen Francis Donnelly
Jurisdiction
Australia
Judgment Date
28 September 2012
Procedural Posture
Civil / Post Trial Decision on Damages and Costs
Outcome
Judgment for the applicants against the third and fourth respondents; costs awarded as specified.
Legal Topics
Misleading and Deceptive Conduct, Damages Calculation, Interest, Settlement, Costs
Trade Practices Misleading and Deceptive Conduct Damages Calculation Interest Settlement Costs

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Parties

Kathleen Phyllis Miletich

First Applicant

Adrian Mark Miletich

Second Applicant

Kalel Enterprises Pty Limited (ACN 121 109 108)

Third Applicant

Alan Murchie

First Respondent

Wilmot Murchie Pty Limited (ACN 103 108 603)

Second Respondent

83 East Pty Limited (ACN 094 852 507) (in liquidation)

Third Respondent

Stephen Francis Donnelly

Fourth Respondent

Procedural Posture

Civil / Post Trial Decision on Damages and Costs

Legal Issues

  1. 1 How should damages and interest be calculated when applicants have settled with some respondents and judgment is given against remaining respondents?
  2. 2 How should costs be apportioned when some have already been paid under a confidential settlement deed?

Ratio Decidendi

Where a plaintiff settles with some respondents for a mixed lump sum (including damages and interest), and proceedings continue against remaining respondents, judgment should be given for the difference between total damages plus full interest and the lump sum settlement already received, thus compensating for the total loss as required by statute.

Court Disposition

Judgment for the applicants against the third and fourth respondents; costs awarded as specified.

Orders

  • The confidential deed of release is to be kept in a sealed envelope and opened only by court order.
  • Judgment is entered for the applicants against the third and fourth respondents in the sum of $278,962.10, inclusive of interest calculated from 22 October 2007 to 28 September 2012, using rates from Practice Note CM16.