Kalls Enterprises Pty Ltd (In liquidation) & Ors v Baloglow & Anor (No 3) [2007] NSWCA 298

Kalls Enterprises Pty Ltd (In liquidation) & Ors v Baloglow & Anor (No 3) [2007] NSWCA 298

The appropriate rate for pre-judgment interest is that provided by Schedule 5, as the respondent failed to provide evidence or persuasive argument to justify a departure from the conventional rate or a reduction due to delay. There was no demonstration that the liquidator's delay was unreasonable nor that overcompensation would occur using Schedule 5 rates. Thus, interest as calculated by the plaintiff using these rates is adopted.

Parties
First Appellant: Kalls Enterprises Pty Ltd (in liquidation); Second Appellant / Second Plaintiff: AA Australian Commercial Laundries Pty Ltd; Third Appellant: Christopher Damien Darin (in his capacities as Liquidator of Kalls Enterprises (In liquidation) and AA Australian Commercial Laundries Pty Ltd (In liquidation)); First Respondent and Cross Appellant / First Defendant: Theo Baloglow; Second Respondent and Cross Respondent: Peter Kaliaropoulos
Jurisdiction
Australia
Judgment Date
24 October 2007
Procedural Posture
Appeal and Cross Appeal / Determination of Pre Judgment Interest Following Earlier Appellate Decision
Outcome
Order 2.1 of 9 August 2007 discharged; in lieu, judgment for the second plaintiff against the first defendant for $1,190,596.64 taking effect 9 August 2007.
Legal Topics
Pre Judgment Interest, Discretion in Award of Interest, Delay in Proceedings
Civil Procedure Commercial Law Pre Judgment Interest Discretion in Award of Interest Delay in Proceedings

Case Brief

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Parties

Kalls Enterprises Pty Ltd (in liquidation)

First Appellant

AA Australian Commercial Laundries Pty Ltd

Second Appellant / Second Plaintiff

Christopher Damien Darin (in his capacities as Liquidator of Kalls Enterprises (In liquidation) and AA Australian Commercial Laundries Pty Ltd (In liquidation))

Third Appellant

Theo Baloglow

First Respondent and Cross Appellant / First Defendant

Peter Kaliaropoulos

Second Respondent and Cross Respondent

Procedural Posture

Appeal and Cross Appeal / Determination of Pre Judgment Interest Following Earlier Appellate Decision

Legal Issues

  1. 1 Whether pre-judgment interest should be calculated using Schedule 5 rates for the whole pre-judgment period
  2. 2 Whether delay by the liquidator justified reducing or altering interest awarded
  3. 3 Whether rates other than those in Schedule 5 more appropriately reflect compensation for being kept out of money

Ratio Decidendi

The appropriate rate for pre-judgment interest is that provided by Schedule 5, as the respondent failed to provide evidence or persuasive argument to justify a departure from the conventional rate or a reduction due to delay. There was no demonstration that the liquidator's delay was unreasonable nor that overcompensation would occur using Schedule 5 rates. Thus, interest as calculated by the plaintiff using these rates is adopted.

Court Disposition

Order 2.1 of 9 August 2007 discharged; in lieu, judgment for the second plaintiff against the first defendant for $1,190,596.64 taking effect 9 August 2007.

Orders

  • Order 2.1 made on 9 August 2007 discharged.
  • Judgment for the second plaintiff against the first defendant for $1,190,596.64 taking effect on 9 August 2007.