FEDERAL COURT OF AUSTRALIA

Khatri and Lane (Trustees) v McDonald, in the matter of Wilkie (Bankrupt) [2018] FCA 543

File number:

QUD 160 of 2017

Judge:

LOGAN J

Date of judgment:

20 April 2018

Catchwords:

BANKRUPTCY undervalued transactions – transfers that are void against bankruptcy trustees – s 120(1) of the Bankruptcy Act 1966 – equitable charge over real property – whether market value given for that charge – s 123 of the Bankruptcy Act 1966 – whether charge void against bankruptcy trustee such that sum received pursuant to charge formed part of the property of the bankrupt – whether bankruptcy trustee should be allowed interest on that sum – s 51A Federal Court of Australia Act 1976 and from when. HELD – equitable charge void as not proved to be a dealing for market value – interest should be allowed on and from date bankruptcy interest trustee made demand for repayment.

Legislation:

Bankruptcy Act 1966 (Cth) ss 5, 120, 123, 132

Federal Court of Australia Act 1976 (Cth) s 51A

Property Law Act 1969 (WA) s 34

Bankruptcy Regulations 1996 (Cth) reg 13.07

Cases cited:

Pao On v Lau Yiu Long [1979] 3 WLR 435

Re Hardman; ex parte The Official Receiver (1932) 4 ABC 207

Rodgers v Schmierer (2003) 1 ABC(NS) 100

Date of hearing:

19 June 2017

Date of last submissions:

30 June 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

47

Counsel for the Applicant:

Mr C Wilkins

Solicitor for the Applicant:

Australian Law Partners

Counsel for the Respondent:

The respondent appeared in person with his McKenzie Friend, Ms MacIntyre

ORDERS

QUD 160 of 2017

IN THE MATTER OF THE BANKRUPT ESTATE OF THE LATE ANTHONY ALFRED WILKIE

BETWEEN:

RAJ KHATRI AND MORGAN LANE AS TRUSTEES OF THE BANKRUPT ESTATE OF THE LATE ANTHONY ALFRED WILKIE (A BANKRUPT)

Applicant

AND:

ALISTAIR GARRY MCDONALD

Respondent

JUDGE:

LOGAN J

DATE OF ORDER:

20 APRIL 2018

THE COURT ORDERS THAT:

1.    It is declared that an equitable charge over real property in favour of the respondent, created by an Acknowledgment of Debt dated 5 May 2010, is void against the applicants by virtue of the operation of s 120(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).

2.    Consequentially, it is further declared the sum of $149,650.53 paid to the respondent on 21 April 2011 as a result of the disposal of some of the real property secured by that equitable charge was property of the abovenamed bankrupt, which, initially, vested in and belonged to the initial trustee in bankruptcy of that bankrupt’s bankrupt estate, the Official Trustee, and in succession and, by virtue of s 132 of the Bankruptcy Act, is presently vested in and belongs to the applicants.

3.    The respondent pay to the applicants the sum of $149,650.53, together with interest on that sum from 2 February 2012 to the date of this judgement pursuant to s 51A(1)(a) of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act), calculated in accordance with the Interest on Judgments Practice Note (GPN-INT).

4.    On or before 1 May 2018, the parties bring in short minutes of an order fixing the amount of that interest, in default of which either party may apply on 2 clear days’ notice to the other for the determination of the amount of interest.

5.    Liberty to apply be reserved to the parties for that purpose.

6.    The respondent pay the applicants costs of and incidental to the application, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    Mr Anthony Alfred Wilkie was made bankrupt on 22 March 2011 on a creditor’s petition presented to the then Federal Magistrates Court by a Deputy Commissioner of Taxation on 24 November 2009. That petition was founded on an act of bankruptcy committed by Mr Wilkie on 11 June 2009. Mr Wilkie has since died (on 16 May 2014).

2    The trustee of Mr Wilkie’s bankrupt estate was originally the Official Trustee in Bankruptcy (Official Trustee). On 21 September 2012, Messrs Raj Khatri and Morgan Lane (the trustees) were appointed as the trustees of that estate in succession to the Official Trustee. The effect of s 132 of the Bankruptcy Act 1966 (Cth) (the Act) was that on that date the property of the bankrupt passed to the trustees from the Official Trustee and vested in them.

3    The trustees have sought a declaration that an equitable charge over real property more particularly described below in favour of the respondent, Mr Alistair Garry McDonald, said to have been created by an Acknowledgment of Debt dated 5 May 2010 is void against them by virtue of s 120(1) of the Act. The obtaining of that declaration is a necessary precondition to the trustee’s obtaining the other relief which they claim namely, a declaration that the sum of $149,650.53 paid to Mr McDonald on or about 21 April 2011 was property of Mr Wilkie which had vested in and belonged to the then trustee in bankruptcy of Mr Wilkie’s bankrupt estate, the Official Trustee. The trustees also seek the allowance of interest on that sum on and from 21 April 2011 (or alternatively 2 February 2012), pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act).

4    Subsection 120(1) of the Act provides:

Undervalued transactions

Transfers that are void against trustee

(1)    A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor's bankruptcy if:

(a)    the transfer took place in the period beginning 5 years before the commencement of the bankruptcy and ending on the date of the bankruptcy; and

(b)    the transferee gave no consideration for the transfer or gave consideration of less value than the market value of the property.

5    At the trial, the trustees were represented by counsel and solicitor. Mr McDonald appeared on his own behalf (via video link), albeit with the permitted assistance of a “McKenzie’s friend”. Mr McDonald originally sought the transfer of the proceeding to the Court’s West Australian District Registry but chose to withdraw that application on the date appointed for trial. He also wished to have the trial adjourned on the basis of an inability to fund legal advice (although he mentioned that he had been able to obtain some pro bono assistance). In any event, I was not disposed to grant any adjournment, as the issue for trial was a compressed one and ample time for preparation had been allowed by interlocutory directions.

6    The trustees’ evidence in the proceeding comprised affidavits read on their behalf (Mr Casalegno of their solicitors, as to matters going to whether there should be any adjournment, and Mr Khatri as to substantive proofs, described below). Mr McDonald made no objection to Mr Khatri’s affidavits.

7    Certain documents were also tendered on behalf of the trustees. One was an extract from the National Personal Insolvency Index, going to the making of the sequestration order and the act of bankruptcy on which it was based. These facts were not, in the end, controversial, so I understood but in any event they were proved by the tender of the extract: reg 13.07 Bankruptcy Regulations 1996 (Cth). Other documents were tendered during the course of Mr McDonald’s cross-examination. I deal with these in detail below.

8    Mr McDonald made an affidavit going both to his present circumstances (he is retired and in receipt of an age pension) and in support of the application for transfer which he chose to withdraw. He gave oral evidence-in-chief by video link and was cross-examined.

9    For the purposes of s 115 of the Act, Mr Wilkie’s bankruptcy is taken to have relation back to, and to have commenced on, 11 June 2009. On the evidence, that is the earliest act of bankruptcy committed by Mr Wilkie within the period of 6 months immediately before 24 November 2009, the date on which the Deputy Commissioner’s creditor’s petition was presented.

10    The trustees have proved (Ex RKK2, “RKK” being a designation for exhibits to Mr Khatri’s affidavits) that, on 5 May 2010, Mr McDonald and Mr Wilkie entered into an agreement in writing, termed an “Acknowledgement of Debt” (Acknowledgement) by which certain debts owed to Mr McDonald were acknowledged and pursuant to which Mr Wilkie granted to Mr McDonald a charge over the following properties in Western Australia so as to secure payment of his acknowledged indebtedness:

    Lot 31 on Diagram 51092 being the whole of the land comprised in Certificate of Title Volume 1566 Folio 640 (Lot 31);

    Lot 6 on Diagram 90182 being the whole of the land comprised in Certificate of Title Volume 2094 Folio 25;

    Lot 16 on Plan 2955 being the whole of the land comprised in Certificate of Title Volume 1459 Folio 789 (Lot 16); and

    Lot 25 on Strata Plan 11436 being the whole of the land comprised in Certificate of Title Volume 1645 Folio 725.

(collectively, the Lands)

11    The Acknowledgement also contemplated that Mr McDonald would lodge a caveat over the Lands. The purpose of that provision was evidently to protect the equitable interest in the Lands created by the Acknowledgement.

12    The Acknowledgement referred to two separate subjects of indebtedness by Mr Wilkie to Mr McDonald, one termed the “Bridgetown Civil Works Debt”, the other, the “ATO Loan Debts”, each debt being repayable on demand.

13    The Bridgetown Civil Works Debt acknowledged that “a sum of $204,091 is owed to the Lender in respect of subdivision civil works undertaken by the Lender [Mr McDonald] at the Borrower’s [Mr Wilkie’s] request in Bridgetown in about 2008, as set out in the tax invoice numbered 08/30 and dated 15 July 2008”. In respect of this debt, the Acknowledgement also recorded an agreement by Mr Wilkie to pay interest at the rate of 14 per cent per calendar month, calculated from 15 August 2009 until payment. This was stated to be payable on demand.

14    The ATO Loan Debts were specified in the Acknowledgement as arising from two, separate loans made by Mr McDonald to Mr Wilkie, each for the purpose of Mr Wilkie’s paying a debt owed to the Australian Taxation Office. One such loan (of $50,000.00) was specified as having been made on or about 19 June 2009; the other (of $12,062.50) on or about 26 May 2009. The Acknowledgement also recorded an agreement by Mr Wilkie to pay interest at the rate of 18 per cent per calendar month from the date of the making of each loan until repayment.

15    On 10 May 2010 and as contemplated by the Acknowledgement, a caveat (Ex RKK3) dated 7 May 2010, in support of the equitable charge in respect of part of the Lands, was registered .

16    As it happened, another caveat had been lodged in respect of Lot 16 but the occasion for this was a separate, written acknowledgement of debt as between Messrs McDonald and Wilkie dated 7 July 2008 (Ex RKK 11) and the related caveat was dated 15 September 2009. The trustees do not seek any relief in respect of this caveat or that acknowledgement.

17    On 13 April 2011 and 16 May 2011 respectively, certificates of title (Ex RKK5 and Ex RKK6) were issued as a result of a subdivision of Lot 31 (Ex RKK 7 is the consequentially cancelled certificate of title for Lot 31).

18    It is admitted on the pleadings that:

    on or about 21 April 2011, Mr McDonald was paid $149,650.53 from the proceeds of a sale of Lot 99 (or, alternatively, Lot 98);

    this payment reduced the amount owing by Mr Wilkie to Mr McDonald; and

    Mr McDonald purported to receive that payment as an equitable chargee of Lot 99 (or, alternatively, Lot 98).

19    Having regard to the registered proprietor recorded on the certificates of tile in respect of Lots 98 and 99 respectively, it is inferentially likely and I find that it was Lot 99 which was sold, as Mr Wilkie remains recorded on the certificate of tile as the registered proprietor of Lot 98 and at the lodging of a caveat on 4 April 2011 by Mr McDonald, in respect of dealings with that Lot, is recorded on its certificate of title.

20    By a letter dated 2 February 2012 sent to Mr McDonald’s then-solicitors, the Official Trustee made demand on him for the repayment of the sum of $149,650.53. Mr McDonald declined to repay that sum.

21    For the purposes of s 120(1) of the Act, the granting of a charge of the kind found in the Acknowledgement constitutes the transfer of an interest in property: Re Hardman; ex parte The Officer Receiver (1932) 4 ABC 207 at 210 where Lukin J, referring to English authority, remarked of the word, “transfer” in the analogue in the then bankruptcy legislation as “one of the widest words that can be used”. The word remains so used in s 120(1) of the Act. The Lands were undoubtedly “property” for the purposes of s 120(1), having regard to the definition of that word in s 5 of the Act. The first conclusion is reinforced by the operation of s 120(7)(b) of the Act in that Mr Wilkie’s granting of the charge by the Acknowledgement made Mr McDonald the owner of a “a bundle of choses in action and proprietary interests that did not previously exist Rodgers v Schmierer (2003) 1 ABC(NS) 100 at [37] per Conti J (adopting an expression used by Austin J in Sutherland v Brien (1999) 149 FLR 321).

22    Thus, prima facie, the granting of this equitable charge via the Acknowledgement on 5 May 2010 fell within the relation back period and was void as against the Official Trustee and now as against his successor, the trustees.

23    Mr McDonald did not, as I understood his submission, contest that the granting of the charge constituted a transfer of property. Rather, his submitted defence, which was not, in terms, his pleaded defence, was that this particular transfer was not invalidated by the operation of s 120(1) of the Act, because s 123 of the Act was applicable. The granting of the equitable charge was, as I understood the submission, said to be a dealing by or with Mr Wilkie to which s 123(1)(c) of the Act applied.

24    In his Defence, Mr McDonald pleaded that the agreement with Mr Wilkie for the granting of an equitable charge over the Lands first took place “on or about March/April 2008”, before earthmoving and property development services (termed “the Works”) commenced to be provided to Mr Wilkie by him. He further pleaded that this agreement provided for payment to be made the respondent would be made after the Lands were developed and sold and that, “to protect payment”, Mr Wilkie would provide “a security interest by way of equitable charge or charges, secured by caveat or caveats over the Lands. For this reason, the granting of the equitable charge was said to be a transfer for which Mr Wilke “gave consideration equal to or in excess of ·the market value of that property, namely, the provision of the Works in 2008 and the advancement of further funds by way of loan in 2009”. This agreement (inferentially, an oral one) was said to have been “formalised” in writing on or about 7 July 2008.

25    Mr McDonald further pleaded that the loans to Mr Wilkie for the purpose of the latter’s making payments to the Australian Taxation Office were the subject of a like agreement at the time of these loans for the provision of like security. In his Defence, he pleaded that the Acknowledgement “further formalised their earlier agreements”.

26    In his written submission, filed by direction after the trial, Mr McDonald submitted that s 123 of the Act was applicable because, his “lifting the caveats and replacing them” allowed:

(a)    a subdivision which significantly increased the value of, materially, Lot 31; and

(b)    the sale of that land allowed Mr Wilkie to discharge his obligations to the mortgagees of that land, reducing the amount of interest and penalties payable to those mortgagees.

27    Alternatively, Mr McDonald advanced the proposition in his written submission that “the caveat transaction” was “exempt from the past consideration principle as per Pao On v Lau Yiu Long [1979] 3 WLR 435 (Pao On v Lau Yiu Long). In furtherance of this he submitted that he had “provided earthworks to the value of $204,091 and loans to the value of $62,062.50 in 2008”. He alleged in this submission (which I took to be a submission that it be found as a fact on the evidence) that, in January 2011, Mr Wilkie had requested him to “lift the caveats” to allow for subdivision and sale of the lots and promised to pay him the sum of $149,650.53. He further alleged that, on or around 3 February 2011, he had instructed his solicitor to “lift the caveats”, “subject to an enforceable agreement for Mr Wilkie to pay the sum of $149,650.53”.

28    Before considering this submission, it is necessary to refer to the oral evidence given by Mr McDonald at the trial and to make some further findings of fact.

29    For all of the reasons notably canvassed by Professor Dame Hazel Genn DBE, QC, 2016, Assessing Credibility (Court and Tribunals Judiciary, UK, 2016, https://www.judiciary.gov.uk/wp-content/uploads/2016/01/genn_assessing-credibility.pdf, viewed 18 April 2018) page 2, the task of assessing the credibility of a witness who has given oral evidence is apt to be fraught. Demeanour, in particular, is apt to be misinterpreted. To the risks of error and challenges which she describes must be added the sense of detachment and loss of intimacy of observation which are the consequence of the reception of evidence by video link. Such matters acknowledged, my contemporaneous note of observing Mr McDonald giving evidence was of seeing, and hearing, an Australian countryman in attire and in manner of speech. He struck me as someone who was given to plain speaking and something of a “bush lawyer”.

30    Mr McDonald related in evidence, and I accept, that, in 2007, he and Mr Wilkie came to an arrangement orally for the performance by Mr McDonald (who traded under the business name Prime Contracting) of earthmoving and related works on land at Bridgetown then owned by Mr Wilkie. The time of a preliminary, oral arrangement as given in his oral evidence does differ from that pleaded, “on or about March/April 2008”, but that pleading is itself imprecise.

31    What I am not persuaded about is that this preliminary, oral dealing between these two men about the undertaking of these works extended to the granting of any charge or the lodgement of a supporting caveat. On Mr McDonald’s account, he did not become aware until 2010 that Mr Wilkie had a court appearance related to proceedings by the Australian Taxation Office. He referred in his evidence in chief to a “loan agreement” with Mr Wilkie but agreed under cross-examination that this “loan agreement” was the separate acknowledgement of debt dated 15 July 2008 (Ex RKK 11), which did contemplate the giving of a caveat but over Lot 16 only.

32    A Prime Contracting invoice No 08/30 directed to Mr Wilkie dated 15 July 2008 in the amount of $204,091.80, tendered in the course of his evidence-in-chief (which became part of exhibit 2) related, Mr McDonald stated, to the performance of these works by him. I accept that works to the value invoiced were by then undertaken. Mr McDonald related that some minor work remained to be done and was completed in 2009. I accept this but find that the bulk of the work was undertaken and completed by the date of this invoice.

33    The date of this invoice and of the separate acknowledgement is, I find, not coincidental. The precise composition of the indebtedness referred to in this separate acknowledgement is not stated. That is in keeping with a document which does not on its face purport to have been drawn by a lawyer and whose language (“lift the caveat”, for example) strongly suggests that it was not. Inferentially, something in July 2008 must have provoked Mr McDonald to want to, and then to record, something in writing with Mr Wilkie and to seek a caveat. But the initial arrangement about the undertaking of the earthmoving works looks to have been a simple and straightforward oral agreement to undertake those works, without any provision for security. That an arrangement of such informality would be made was entirely in keeping with the man I observed in the witness box, and that is not intended as a criticism of Mr McDonald. I rather thought that Mr McDonald had conflated the feature of provision for a caveat in that July 2008 acknowledgement with the earlier, oral agreement. That is consistent with the absence of any reference in the Acknowledgement or, for that matter, the separate acknowledgement to any anterior, oral agreement at all, let alone one providing for the giving of any security.

34    This conclusion as to the terms of the anterior, oral agreement is sufficient in itself to dispose of Mr McDonald’s pleaded defence. But the position would be no different even if that agreement did make provision for the giving of security. That is because the effect of s 34 of the Property Law Act 1969 (WA) is that an oral agreement could not create an interest in land.

35    It remains to consider whether s 123(1)(c) of the Act offers any refuge for Mr McDonald from the prima facie position established by the trustees.

36    An immediate difficulty for Mr McDonald, in relation to the application of s 123(1)(c) of the Act, is that there is just no evidence that a removal by him of the caveat in respect of the hitherto Lot 31 (Lots 98 and 99 as subdivided) market value of $149,650.53. That, in itself, is fatal to his escaping the application and operation of s 120(1) of the Act.

37    This aside, the application of s 123(1)(c) of the Act is conditioned upon additional proof of each of the following (as found in s 123(e), (f) and (g)):

(e)    the transaction took place before the day on which the debtor became a bankrupt;

(f)    the person, other than the debtor, with whom it took place, did not, at the time of the transaction, have notice of the presentation of a petition against the debtor; and

(g)    the transaction was in good faith and in the ordinary course of business.

Mr McDonald, not the trustees, bears the persuasive onus in respect of these additional proofs: s 123(2) of the Act.

38    Mr McDonald has not proved the assertion in his submission that it was on 3 February 2011 that he had instructed his solicitor to “lift the caveats”. Inferentially, there must have been a withdrawal of a caveat over Lot 31 prior to the creation of the new, subdivided lots and related issuing of certificates of title for Lots 98 and 99, but precisely when is not established. Assuming though that it was on 3 February 2011, Mr McDonald has not proved that either on that date or on 21 April 2011 when he received the sale proceeds, he did not have notice of the presentation of the creditor’s petition against Mr Wilkie. His evidence-in-chief was that Mr Wilkie had advised him in 2010 of his “predicament” with the Australian Taxation Office. That “predicament” looks to be the creditor’s petition proceeding in the Federal Magistrates Court, rather than just awareness that Mr Wilkie owed money to the Australian Taxation Office. That is because, by 2010, Mr McDonald had already twice loaned sums to Mr Wilkie for the purpose of making payments to the Australian Taxation Office. Further, Mr McDonald also stated in his evidence-in-chief that he became aware in 2010 that Mr Wilkie had an Australian Taxation Office court related appearance. Such knowledge on his part is consistent with the terms of an email of 22 September 2010 to his then solicitors, tendered, without objection, during the course of his cross examination (Exhibit 4), which evidences that he was monitoring the course of the creditor’s petition proceedings against Mr Wilkie in the Federal Magistrates Court.

39    Mr McDonald made a number of other factual assertions about Mr Wilkie’s taxation affairs and his knowledge or otherwise of them in his written submission but these were not the subject of evidence by him. For that reason, I do not detail them.

40    In his written submission, Mr Wilkie raised an objection to the tender of the email on the basis that it was directed to his then solicitor, Ms Kylie Everett and had been inadvertently disclosed to the trustees along with material concerning the caveats. This inadvertence, he asserted, ought to have been obvious to the solicitors for the trustees. But the time for objecting was not in a later submission, but upon the tender of the email and that was when Mr Wilkie would have to have demonstrated that the email was sent for the dominant purpose of receiving legal advice from Ms Everett. This he did not do. On its face, the email does not request any legal advice. Without evidence as to context, it looks on its face just to be an updating of developments. That does not suggest to me that there was any misconduct on the part of the trustees’ solicitors in briefing counsel with it and its consequential use in cross-examination and tender.

41    This aside, Mr McDonald has not proved that any agreement with Mr Wilkie for the removal of the caveats was in good faith and in the ordinary course of business.

42    Mr McDonald’s reference in his submission to Pao On v Lau Yiu Long is a reference to an case determined by the Judicial Committee of the Privy Council in an appeal from the Court of Appeal of the then-British Colony of Hong Kong, reported in the authorised reports, [1980] AC 614. Amongst other things, it stands for the principle that, in contract law, an act done prior to a promise will be good consideration if that act was done at the promisor’s request, the parties understood that the act would be remunerated in some way and, if the promise had been given in advance of the act, it would be legally enforceable. Mr McDonald apparently had it in mind that this principle meant that it did not matter, for the purposes of making s 120(1) of the Act inapplicable, that the earthmoving works had been undertaken prior to the Acknowledgement. But s 123(1)(c) of the Act looks to the existence of a dealing for market value. The past consideration principle referred to in Pao On v Lau Yiu Long is quite irrelevant to the test posited in s 123(1)(c) of the Act.

43    It follows that Mr McDonald has not proved that s 123(1)(c) of the Act is applicable. It follows that the trustees have established that the equitable charge is void and that they are, consequentially, entitled to an order for the repayment to them by Mr McDonald of the sum of $149,650.53.

44    Mr McDonald also contests the awarding of interest on that sum to the trustees on the basis of delay. But he has had the use and benefit of that sum since its payment to him on 21 April 2011. Interest ought not to run on and from 21 April 2011, as it was only by the letter of 2 February 2012 that he was put on notice by the Official Trustee that the equitable charge in the Acknowledgement was considered to be void as against him by virtue of the operation of s 120(1) and repayment of the sum of $149,650.53 sought. But there is nothing to suggest that Mr McDonald ever had a case that he gave market value for a dealing in April 2011 with Mr Wilkie such that s 123(1)(c) would absolve him from the relation back effect of s 120(1). In my view, the trustees are entitled to an award of interest under s 51A(1)(a) of the Federal Court of Australia Act from 2 February 2012 until the date of this judgement.

45    Interest on judgements is the subject of the Court’s Practice Note GPN-INT of 18 September 2017. In respect of pre-judgement interest, that practice note provides:

2.2    Parties and their lawyers should expect that when, pursuant to s 51A(1)(a), interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices of Australia and New Zealand:

(a)    in respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced; and

(b)    in respect of the period from 1 July to 31 December in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

46    In the event of disagreement as to the applicable rates and consequential amount of interest, I shall determine that on application on the evidence presented by the parties.

47    There will be judgment accordingly.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:  

Dated:    20 April 2018