Nadarajapillai v Naderasa

1. [1]

   McCOLL JA: I agree with Emmett JA.

2. [2]

   MACFARLAN JA: I agree with Emmett JA.

3. [3]

   EMMETT JA: By notice of appeal filed on 23 June 2014 (the Notice of Appeal), the appellant, Mr Pirapakaran Nadarajapillai (the Borrower) appeals from orders made by the District Court on 10 April 2014. On that day, for reasons given by the primary judge ex tempore, judgment was entered for the respondent, Mr Ravindran Naderasa (the Lender), in the sum of $128,471.72 and the Borrower was ordered to pay the Lender’s costs of the proceedings.

4. [4]

   In order to put the appeal into context, it is necessary to say something about the proceedings in the District Court. The proceedings were commenced by statement of claim filed on 30 January 2013 (the Statement of Claim). The relevant allegations in the Statement of Claim may be summarised as follows:

5. [5]

   It is fair to say that the statement of claim is not free from criticism. For example, it claimed damages and not debt and it mistakenly asserted that the Lender, rather than the Borrower, was to repay the principal and to pay interest. In addition, it claimed “quantum meruit” in the alternative, without explaining the nature of any such claim.

6. [6]

   The Borrower filed a defence on 1 May 2013 (the Defence). Relevant admissions and assertions made in the Defence may be summarised as follows:

Proceedings before the primary judge and the primary judgment

1. [7]

   At the commencement of the hearing before the primary judge, counsel for the Lender provided an aide-mémoire to his Honour, setting out matters admitted by the Borrower in the Defence. Counsel for the Borrower raised no objection to the aide-mémoire. After ruling on objections to the affidavit evidence, the primary judge was informed that neither party wished to cross-examine the other. Both parties then addressed his Honour.

2. [8]

   Counsel for the Borrower referred to a statement of facts and issues filed on behalf of the Borrower (the Borrower’s Issues). The Borrower’s Issues set out the essential facts admitted by the Borrower, which corresponded closely to the admissions set out in the aide-mémoire. The Borrower’s Issues then stated that the issues were as follows:

3. [9]

   In his reasons, the primary judge said that he was dealing with the claim on the basis that the Lender accepted the Borrower’s assertion that the amount owing as at October 2012 was $82,353.67 and that nothing had been paid since then. His Honour said that the Borrower’s defence was that it was a term of the agreement that the Lender was to give to the Borrower 90 days’ notice if he required repayment of the money that he had lent and that the Borrower was in breach of that term by not having given 90 days’ notice.

4. [10]

   The primary judge then referred to a letter sent by the Lender’s solicitors to the Borrower on 15 October 2012 demanding the repayment of $84,102.99, comprising the principal owing and interest calculated to 22 October 2012. His Honour concluded that, despite the fact that the demand did not specifically refer to giving the Borrower 90 days in which to pay, the letter constituted sufficient compliance with the contractual obligation to give the Borrower 90 days after the demand to make the payment. His Honour observed that the proceedings were commenced on 30 January 2013, well enough after 90 days had expired from the date of the solicitor’s letter.

5. [11]

   The primary judge also referred to a submission made by the Borrower that the Lender was in breach of the agreement by presenting a number of the post-dated cheques and, by doing so, had abandoned the agreement and could not rely on it. His Honour concluded that the Lender was entitled to present the cheques when their dates accrued and that the presentation was not a breach of the agreement. In any event, his Honour held that it would not have been such a breach as would have disentitled the Lender from relying on the agreement. His Honour also referred to a submission on behalf of the Borrower that the Lender was not entitled to interest because of that alleged breach of the agreement. His Honour did not consider that he needed to add anything further in relation to that submission.

6. [12]

   The primary judge was therefore satisfied that the Lender was entitled to rely on the agreement and that the 90 days’ notice required by it had been given to the Borrower. His Honour concluded that, since the Borrower had not repaid the moneys lent, as required by the agreement, the Lender was entitled to a verdict.

7. [13]

   The primary judge also referred to a dispute as to whether interest at the rate of 3.5 per cent per month was simple interest or compound interest. His Honour was not prepared to allow interest to be calculated as compound interest, but instead allowed it to be calculated as simple interest.

8. [14]

   The primary judge was informed that, from 15 November 2012 until a date in “mid-March 2014”, the amount of interest amounted to $46,118.05, which, when added to the principal, yielded a total of $128,471.72. Accordingly, his Honour entered a verdict and judgment for the Lender in that amount.

The appeal

1. [15]

   When the appeal was called on for hearing, the solicitor for the Borrower sought leave to rely on amended grounds of appeal in substitution for the grounds in the Notice of Appeal. While no satisfactory explanation was proffered for the lateness of the application, leave was granted over the objection of counsel for the Lender.

2. [16]

   The amended grounds may be summarised as follows:

3. [17]

   The amended grounds particularised the complaint that the Borrower was denied natural justice and procedural fairness by making the following assertions:

4. [18]

   In the course of oral argument, the solicitor for the Borrower also relied on an asserted failure of the Statement of Claim to comply with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in relation to the claim for interest made in it. Although not mentioned by the Borrower’s solicitor, it is likely that he was referring to rr 6.12(6) and 6.12(7) of the UCPR, which provide that an order for interest up to judgment must be specifically claimed and that, in the case of a liquidated claim, a claim for an order for interest up to judgment must specify the period for which interest is claimed and may specify the rate or rates at which interest is claimed.

5. [19]

   It is apparent that, apart from the basis on which interest was to be calculated, in respect of which the Borrower was successful, the only issue before the primary judge was whether the Lender was entitled to repayment of the loans prior to giving either 90 days’ or three months’ notice that repayment was required. While, in the Statement of Claim, the Lender also sued on the cheques, it is clear enough that that claim was not pressed before the primary judge, in circumstances where the Borrower admitted that the loans had been made, admitted that an amount of $82,353.67 was owing in respect of the loans, admitted that interest at the rate of 3.5 per cent per month was payable on the outstanding loans, and admitted that demand for repayment had been made in October.

6. [20]

   Quite clearly, demand had been made more than 90 days before the commencement of the proceedings. It must follow, therefore, that, as at the date of commencement of the proceedings, the principal of the loans was due and owing and there was no reason why the Lender was not entitled to sue for recovery of the principal, together with contractual interest up to the date of judgment.

7. [21]

   No written submissions were provided in support of the amended grounds and the oral submissions made on behalf of the Borrower before this Court were quite incomprehensible. More significantly, no attempt was made before this Court by the solicitor for the Borrower to grapple with the fact that, before the primary judge, counsel for the Borrower had indicated that the only issue for determination was that 90 days’ notice had not been given and that the consequence was that the Lender was not entitled to repayment of the loans. The grounds of appeal do not complain about the determination of that question by the primary judge. Rather, they raise questions that were simply not in issue before the primary judge and about which no complaint was made to the primary judge.

8. [22]

   The complaint now made about the representation of the Borrower before the primary judge is entirely without substance. Indeed, one might compliment the Borrower’s legal representatives for having narrowed the issues in the way that they did. That is not a comment that could be made about the representation of the Borrower before this Court. There is absolutely no substance in any of the amended grounds relied on by the Borrower, all of which are quite unarguable.

9. [23]

   The appeal is entirely without merit. The appeal must be dismissed with costs.