Re Morris; Ex Parte: Max Christopher Donnelly as trustee of the bankrupt estate of T C Morris v Colonial Mutual Life Assurance Society Ltd & Ors [1997] FCA 1119 (8 September 1997)

FEDERAL COURT OF AUSTRALIA

RE: MORRIS; EX PARTE: MAX CHRISTOPHER DONNELLY AS TRUSTEE OF THE BANKRUPT ESTATE OF T C MORRIS v COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED & ORS

NO. NB 3283 OF 1993

REASONS FOR JUDGMENT (No.4)

JUDGE: BEAUMONT J

PLACE: SYDNEY

DATE: 8 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NB 3283 of 1993

RE:	THEODORE CONSTANTINE MORRIS
EX PARTE:	MAX CHRISTOPHER DONNELLY as Trustee OF THE BANKRUPT ESTATE OF T C MORRIS applicant
AND:	COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED First Respondent MONARTH PTY LIMITED Second Respondent (Ordered to be struck out by order of the Court on 7 August 1997) CEDRIM PTY LIMITED Third Respondent (Ordered to be struck out by order of the Court on 7 August 1997) LOUIS CONSTANTINE MORRIS Fourth Respondent (Ordered to be struck out by order of the Court on 7 August 1997) ENID ROSLYN SIVELL (WHITBREAD) Fifth Respondent (Ordered to be struck out by order of the Court on 7 August 1997) HELEN ANASTOPOULOS (ELLEN MONTZOUROPOULOS) Sixth Respondent YIANOULA (JENNIFER) MORRIS Seventh Respondent THEODORE CONSTANTINE MORRIS Eight Respondent

JUDGE:	BEAUMONT J
DATE OF ORDER:	8 SEPTEMBER 1997
WHERE MADE:	SYDNEY

ORDERS:

1. Judgment for the applicant against the first respondent in the sum of $545,000.

2. Order that the first respondent pay the applicant pre-judgment interest in the sum of $178,170.20.

3. The first respondent pay 70 per cent of the applicant's costs of the proceedings.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NB 3283 of 1993
RE:	THEODORE CONSTANTINE MORRIS
EX PARTE:	MAX CHRISTOPHER DONNELLY as Trustee OF THE BANKRUPT ESTATE OF T C MORRIS Applicant
AND:	COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED First Respondent MONARTH PTY LIMITED Second Respondent (Ordered to be struck out by order of the Court on 7 August 1997) CEDRIM PTY LIMITED Third Respondent (Ordered to be struck out by order of the Court on 7 August 1997) LOUIS CONSTANTINE MORRIS Fourth Respondent (Ordered to be struck out by order of the Court on 7 August 1997) ENID ROSLYN SIVELL (WHITBREAD) Fifth Respondent (Ordered to be struck out by order of the Court on 7 August 1997) HELEN ANASTOPOULOS (ELLEN MONTZOUROPOULOS) Sixth Respondent YIANOULA (JENNIFER) MORRIS Seventh Respondent THEODORE CONSTANTINE MORRIS Eight Respondent
JUDGE:	BEAUMONT J
DATE:	8 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No. 4)

(On the questions of interest and costs)

BEAUMONT J.

Application is now made by counsel for the applicant trustee for pre-judgment interest. I have, of course, a discretion in this matter. It appears that by letter dated 25 October 1994, the applicant trustee wrote to Minter Ellison, solicitors acting for Colonial Mutual Life Assurance Society Ltd ("CML"), and foreshadowed a possible claim in respect of the moneys the subject of this litigation. By further letter dated 18 November 1994, the applicant trustee claimed these funds as an asset of the estate of Mr Morris.

In my opinion, it is appropriate to apply the usual principles in this connection, that is to say, that I should allow interest from the date of demand, that is, 18 November 1994.

A submission was made on behalf of the applicant trustee that I should allow interest from an earlier date, that is to say, from 17 May 1994, the time that CML received the three bank cheques. However, in accordance with established authority in this area, I think that it is appropriate that interest be allowed only from the time the moneys were in fact claimed, that date being 18 November 1994. The proceedings, it may be noted, were commenced in September 1995. I therefore order that CML pay interest from 18 November 1994 on the judgment I now propose to enter.

With respect to the rate of interest to be charged, in accordance with the Court's usual practice in these matters, I will allow interest at the rate prescribed from time to time by the Supreme Court Act 1970 (NSW). Counsel and solicitors for these parties can, in the first instance, seek to agree those rates and those amounts. I will make orders once an order, agreed for that limited purpose only, is provided to the Court and I will make that order in chambers. So, there will be judgment in the amount indicated, that is, in the sum of $545,000, together with interest as I have directed.

(Postcript: Since dictating this, I can note that the solicitors for these parties have now acknowledged that the amount of pre-judgment interest, calculated as above, would be $178,170.20).

Turning then to the question of costs, I have come to the view that I should allow the applicant 70 per cent of his costs of the whole of the proceedings. My reasons for that decision are as follows.

This is, and has been, complex litigation. It has required intense case management and a number of separate hearings. A number of important adjectival questions are on procedural and evidentiary points which needed to be dealt with separately. In particular, I dealt, at some length, with CML's notice of motion, the subject of my reasons for judgment (No.1) dated 7 August 1997, on the strike out application.

All of the costs of the previous hearings and of those adjectival issues have been reserved. The reality is that each party has had a relative degree of success and failure on those matters. In the principal proceedings, that is to say, the main hearing, the applicant trustee has, overall, succeeded. However, in my view, it is plain that a number of its claims were not only unnecessary but simply not open. Some allowance should be made for CML's costs in that respect.

I could approach the matter in a number of ways. One approach would be to attempt to make specific orders in respect of particular aspects of the litigation and then to provide that orders for costs be set off one against the other. Whatever technical advantages this may appear to have in principle, I do not find that approach attractive in any practical sense. It is the modern practice of the Court to endeavour to simplify the implementation of orders for costs and to avoid the need for taxation so far as that is possible.

The alternative approach is to attempt some estimate of the overall costs of the whole of the proceedings, and to allow the applicant to recover that proportion of costs which may be seen to reflect the overall degree of success, and failure, in the whole proceedings. Having had the benefit of detailed written submissions on the point, and having had the further advantage of oral submissions today, I have come to the conclusion that a fair apportionment of costs, reflecting the reality of the success of the parties in that overall sense, will be achieved, if I order that the applicant receive 70 per cent of his costs of the whole of the proceedings. I so order.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated: 8 September 1997

Counsel for the Applicant:	Mr F Lever
Solicitor for the Applicant:	Swaab & Associates
Counsel for the First Respondent:	Mr R Weber
Solicitor for the First Respondent:	Minter Ellison
Date of Hearing:	8 September 1997
Date of Judgment:	8 September 1997