Wang v Yu (No 3) [2024] NSWSC 190

Wang v Yu (No 3) [2024] NSWSC 190

The omission to seek pre-judgment interest was an accidental slip or omission by Mr Yu's legal representatives within r 36.17, and the slip rule permitted variation of the 20 December 2023 order. No factor justified refusing interest. For payments made under operative duress, interest was payable from the dates the amounts were advanced, with the additional $10,000 calculated from 28 June 2016 in conformity with the findings in the principal judgment. Order 2 was therefore varied nunc pro tunc so that judgment for Mr Yu against Dr Wang on the cross-claim was $284,470.12.

Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Equity Proceedings; Notice of Motion to Vary Order Under the Slip Rule to Include Pre Judgment Interest on a Cross Claim Judgment / Post Judgment Application After Substantive Orders and Costs Judgment
Outcome
Order varied nunc pro tunc to include pre-judgment interest; no order as to costs of the notice of motion.
Legal Topics
['slip Rule' 'pre Judgment Interest' 'duress to the Person' 'economic Duress' 'payments Made Under Compulsion' 'correction of Orders']
['civil Procedure' 'judgments and Orders' 'remedies' 'restitution'] ['slip Rule' 'pre Judgment Interest' 'duress to the Person' 'economic Duress' 'payments Made Under Compulsion' 'correction of Orders']

Case Brief

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Procedural Posture

Equity Proceedings; Notice of Motion to Vary Order Under the Slip Rule to Include Pre Judgment Interest on a Cross Claim Judgment / Post Judgment Application After Substantive Orders and Costs Judgment

Legal Issues

  1. 1 ["Whether r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) permitted variation of Order 2 made on 20 December 2023 to include pre-judgment interest omitted by oversight of the cross-claimant's legal representatives." 'Whether pre-judgment interest should be included on the $200,000 judgment sum payable by Dr Wang to Mr Yu.' 'From what date or dates pre-judgment interest should be calculated on amounts paid by Mr Yu under operative duress.' 'Whether any costs order should be made in respect of the notice of motion.']

Ratio Decidendi

The omission to seek pre-judgment interest was an accidental slip or omission by Mr Yu's legal representatives within r 36.17, and the slip rule permitted variation of the 20 December 2023 order. No factor justified refusing interest. For payments made under operative duress, interest was payable from the dates the amounts were advanced, with the additional $10,000 calculated from 28 June 2016 in conformity with the findings in the principal judgment. Order 2 was therefore varied nunc pro tunc so that judgment for Mr Yu against Dr Wang on the cross-claim was $284,470.12.

Court Disposition

Order varied nunc pro tunc to include pre-judgment interest; no order as to costs of the notice of motion.

Orders

  • ['Order nunc pro tunc that Order 2 made on 20 December 2023 be varied so that the order is as follows: Orders judgment in favour of the Cross-Claimant against the First Cross-Defendant on the Cross-Claim in the sum of $284,470.12.' 'Order that there be no order as to the costs of Mr Yu, to the intent that he will...