Kay v National Australia Bank Ltd (No 2)

HIS HONOUR : On 30 September 2010, the Court issued reasons for judgment ( Kay v National Australia Bank Ltd [2010] NSWSC 1116) and judgment which dealt with a number of aspects of the proceedings between the plaintiffs and National Australia Bank (hereinafter “NAB”). I made clear on the day this judgment was handed down and shortly after its recital that there were issues that had not been dealt with in the judgment and, because such matters ought be made a matter of public record, I issue these supplementary reasons.

These reasons for judgment should be read with the earlier judgment.

In the course of the earlier judgment (at [76]) the Court made clear that the plaintiffs were not in default at the time suggested by NAB and that no calculation had been made of the amount that, in accordance with the construction of the contract to which the Court had arrived, was owing or should have been paid by the plaintiffs to NAB.

The terms of the judgment (as distinct from the reasons) requires the defendant to calculate the interest payable in accordance with the reasons for judgment and to pay the defendants to the difference. For obvious reasons, that difference may be negative, i.e. the difference may be owed by the plaintiffs to the defendants. The foregoing is and was the subject of the cross-claim which was, deliberately, not resolved in the earlier judgment. Further, the amount of damages may be affected by the calculation of the amounts to be paid and whether, as a consequence, expenditure by the plaintiffs was a matter for which damages would be owing.

All of the above matters are incapable of final resolution until the calculation referred to in order (iii) issued on 30 September 2010 has been finalised. It is for that reason that the cross-claim was not dealt with and leave was reserved to the parties concerning the calculation of damages. That leave included any consequential issue arising from the relationship between orders (ii) and (iii).

As a matter of abundant caution, and to clarify the original intent of the Court, the Court makes the following further orders: (viii) Leave is reserved to the parties to address on the proper resolution of the cross-claim as a result of the foregoing reasons and the calculation of interest payable pursuant to these orders; (ix) Further, leave is reserved to address further on damages payable, if any, after that calculation has been made arising from costs of enforcement by the defendant and/or expenses incurred by the plaintiffs; (x) Parties have liberty to apply on 3 days’ notice for a further date to resolve outstanding issues after finalisation of the calculation in order (ii).