Bull v Lee (No 2) [2009] NSWCA 362

Bull v Lee (No 2) [2009] NSWCA 362

The Respondent's post-judgment submissions beyond the permitted calculation issues were outside the leave granted and should not be entertained; the proposed Notice of Contention was inappropriate because the asserted mistrial would require a new trial or different orders rather than affirmance of the orders below, and no adequate reason justified reopening an appeal already decided. The calculation did not charge interest on interest because each monthly payment was applied first to interest accrued that month and then to principal, with monthly payments exceeding accrued interest. Pre-judgment interest was payable at the agreed rate of 8.5% per annum, producing judgment for the...

Jurisdiction
Australia
Judgment Date
11 November 2009
Procedural Posture
Appeal; Consequential Orders / On Written Submissions After Judgment Concerning Calculation of Amount Owing, Pre Judgment Interest, Leave to Make Further Submissions, Notice of Motion, and Costs
Outcome
Appeal allowed; orders below set aside; judgment entered for the Appellants; Respondent's Notice of Motion dismissed with costs; further consideration reserved on whether Respondent's counsel should personally bear specified costs.
Legal Topics
['submissions Beyond Scope of Leave' 'notice of Contention' 'pre Judgment Interest on Debt' 'interest on Interest' 'costs Against Practitioner' 'consequential Orders']
['civil Procedure' 'appeals' 'costs' 'legal Profession' 'damages'] ['submissions Beyond Scope of Leave' 'notice of Contention' 'pre Judgment Interest on Debt' 'interest on Interest' 'costs Against Practitioner' 'consequential Orders']

Case Brief

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Procedural Posture

Appeal; Consequential Orders / On Written Submissions After Judgment Concerning Calculation of Amount Owing, Pre Judgment Interest, Leave to Make Further Submissions, Notice of Motion, and Costs

Legal Issues

  1. 1 ['Whether the Respondent should be granted leave after judgment to make further submissions beyond the scope of leave previously granted.' 'Whether the Respondent should be granted leave to file a Notice of Contention out of time in respect of matters raised in post-judgment submissions.' 'Whether the draft calculation attached to the earlier judgment wrongly charged interest on interest.' 'Whether pre-judgment interest should be allowed and, if so, at what rate.' 'What costs orders should be made concerning submissions and the Notice of Motion filed after judgment.']

Ratio Decidendi

The Respondent's post-judgment submissions beyond the permitted calculation issues were outside the leave granted and should not be entertained; the proposed Notice of Contention was inappropriate because the asserted mistrial would require a new trial or different orders rather than affirmance of the orders below, and no adequate reason justified reopening an appeal already decided. The calculation did not charge interest on interest because each monthly payment was applied first to interest accrued that month and then to principal, with monthly payments exceeding accrued interest. Pre-judgment interest was payable at the agreed rate of 8.5% per annum, producing judgment for the...

Court Disposition

Appeal allowed; orders below set aside; judgment entered for the Appellants; Respondent's Notice of Motion dismissed with costs; further consideration reserved on whether Respondent's counsel should personally bear specified costs.

Orders

  • ['That orders 1 and 2 made 28 July 2009 are revoked.' 'That the appeal be allowed.' 'That the orders made in the court below be set aside.' 'That there be judgment in the court below in favour of the Appellants in an amount of $25,461.91 (comprising a sum due at 30 November 2004 of $18,189.04 together with interest...