Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 3)

THE COURT: The Court delivered judgment in this matter on 8 May 2015: Mayo v W & K Holdings (NSW) Pty Ltd (in liq) (No 2) [2015] NSWCA 119. The appellant, Ms Mayo, was successful in only a limited respect. The Court found that there was no common intention between the parties not to charge bank fees on the eight lease agreements. Accordingly, the Court set aside one aspect of the rectification orders made by the primary judge which concerned the payment of bank fees of $10 per month on each of the eight lease agreements. As previously noted, the amount involved is relatively trivial ($4,800). This amount, together with any prejudgment interest, is owing by the respondents to Ms Mayo.

The Court gave directions for the filing of any consent order as the amount owing to Ms Mayo within 14 days, and in default of agreement, for the exchange of short written submissions and proposed short minutes of order within 21 days. Unfortunately the parties were unable to agree on the amount of prejudgment interest. Submissions and proposed short minutes were only received from Ms Mayo. The absence of submissions from the second respondent, Mr Leonard, was raised by the Court with his solicitor, but no extension of time was sought on his behalf. The Court indicated to the parties that it would proceed to deal with the matter on the papers which had been filed.

Ms Mayo claims prejudgment interest on the total bank fees outstanding ($4,800) from 1 June 2013, being a date after expiry of the eighth lease agreement to 8 May 2015, being the date of reasons for judgment in this Court. The total interest claimed is $612.36, calculated in accordance with a schedule attached to Ms Mayo’s written submissions.

The submissions of Ms Mayo point out that the commencement date for the claim for prejudgment interest of 1 June 2013 has been chosen for simplicity. Arguably prejudgment interest could have been claimed on each monthly bank fee for each lease agreement from the date upon which the bank fee became due. In view of the very small amount involved, the approach taken by Ms Mayo is to be commended.

It is appropriate that judgment be entered for $5,412.36 comprising the total of the unpaid bank fees ($4,800) and prejudgment interest as claimed by Ms Mayo ($612.36).

A judgment takes effect as of the date on which it is given or made (Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.4(1)), unless the Court makes an order that judgment is to take effect as of a date earlier or later than that fixed by the rules: UCPR r 36.4(3). It is implicit in the draft short minutes proposed by Ms Mayo that she seeks an order that the judgment take effect on 8 May 2015, being the date of reasons for judgment in this Court. It is appropriate to make such an order, noting that no argument to the contrary has been advanced by Mr Leonard.

Accordingly, the Court makes the following orders: