MOYLE -v- QUARLES [2026] WASC 167
[2026] WASC 167
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : MOYLE -v- QUARLES [No 5] [2026] WASC 167
CORAM : LUNDBERG J
HEARD : 24 & 25 MARCH 2026
DELIVERED : 4 MAY 2026
FILE NO/S : CIV 1770 of 2016
(Consolidated with CIV 1279 of 2022)
BETWEEN : ALAN LESLIE MOYLE
Plaintiff
AND
ALEXANDER FRANS HENRI QUARLES DE
QUARLES as executor of the estate of LESLIE
MOYLE
First Defendant
CHERIE PATRICIA CAMPBELL in her own capacity
and as trustee for THE TESTAMENTARY TRUST
CREATED IN THE WILL OF THE LATE LESLIE
MOYLE FOR THE BENEFIT OF JOANNE
MARGARET CAMPBELL
Second Defendant
FILE NO/S : CIV 2197 of 2022
BETWEEN : MOYLE HOLDINGS PTY LTD
Plaintiff
AND
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ALEXANDER FRANS HENRI QUARLES DE
QUARLES
First Defendant
QUARLES PTY LTD
Second Defendant
Catchwords:
Estates - Account as to loss and damage - Findings made as to liability of first
defendant for breaches of duty in his capacity as executor and as director of
company holding the funds of the Estate - Disputes between parties as to the
proper basis for account to be performed - Principle of reparative compensation
- Whether account should have regard to the investment steps in fact taken by
the fiduciary - Whether orders previously made should be varied by the court,
whether liberty to apply available, or whether slip rule should be engaged -
Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 180, s 1317H
Rules of the Supreme Court 1971 (WA), O 21 r 10
Result:
Account to be undertaken in accordance with these reasons, as summarised in
Attachment A.
Category: B
Representation:
CIV 1770 of 2016
(Consolidated with CIV 1279 of 2022)
Counsel:
Plaintiff : S P Tomasich
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First Defendant : S M Standing
Second Defendant : No appearance
Solicitors:
Plaintiff : Croftbridge
First Defendant : Arns & Associates
Second Defendant : Mossensons
CIV 2197 of 2022
Counsel:
Plaintiff : S P Tomasich
First Defendant : S M Standing
Second Defendant : No appearance
Solicitors:
Plaintiff : Croftbridge
First Defendant : Arns & Associates
Second Defendant : Barry Nilsson Lawyers (WA)
Case(s) referred to in decision(s):
Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014)
48 WAR 1
Australian Securities and Investments Commission v Rich [2009] NSWSC
1229; (2009) 75 ACSR 1
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Haines v Bendall [1991] HCA 26; (1991) 171 CLR 60
In Re Ellis; Ellis v Ellis [2015] WASC 77
Moyle v Quarles [No 3] [2025] WASC 443
Moyle v Quarles [No 4] [2025] WASC 443
Orchard Holdings v Paxhill [2012] WASC 271 (S2)
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty
Ltd [No 4] [2015] WASCA 253
Prop West Pty Ltd v Ood Investments Pty Ltd [2010] WASC 154
Province Leader of the Oceania Province of the Congregation of the Christian
Brothers v Lawrence [2021] WASCA 77
Rowe v National Australia Bank [2019] WASCA 140
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Table of Contents
Introduction .............................................................................................................................. 5
Hearing on 28 October 2025 .................................................................................................... 5
Orders made on 28 October 2025 ........................................................................................... 6
Evidence at the account hearing ............................................................................................. 7
The competing methodologies ................................................................................................. 9
The methodology proposed by the plaintiffs ..................................................................... 10
The methodology proposed by Mr Quarles ....................................................................... 11
Issues for determination .................................................................................................... 12
Relevant principles ................................................................................................................. 12
Basis on which liability was found in the Estate Proceeding .............................................. 14
Basis on which liability was found in the Company Proceeding ........................................ 16
Disposition of the Issues ......................................................................................................... 18
Issue 3 – Whether to recognise the term deposits established in fact by Mr Quarles? ..... 18
Issue 1 – What length of term deposits should be used? ................................................... 22
Issue 2 – How is pre-judgment interest on the loss to be calculated? ............................... 24
Issue 4 – Excessive funds held in the working account .................................................... 26
Issue 5 – What opening term deposit rate should be applied? .......................................... 27
Issue 6 – What are the start and end dates for the accounts in the Estate Proceeding? ..... 28
Issue 7 – How should Account 1936 be treated? .............................................................. 31
Conclusion and orders ........................................................................................................... 32
ATTACHMENT A Summary of the court's determination ............................................... 34
ATTACHMENT B Estate Proceeding – Mr Quarles' updated spreadsheet (Ex Q3) ...... 35
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LUNDBERG J:
Introduction
1 On 17 October 2025, the court published its reasons in relation to
the claims made by the plaintiffs in two proceedings, being the Estate
Proceeding and the Company Proceeding, finding that liability had
been established as against Mr Quarles in certain respects:
Moyle v Quarles [No 3] (Primary Reasons).1 The definitions used
in the Primary Reasons will be employed within these reasons.
2 The plaintiff in the Estate Proceeding is Mr Moyle, who was one
of the beneficiaries to the Estate. Mr Quarles was the appointed
executor to the Estate. The plaintiff in the Company Proceeding is
Moyle Holdings, a company holding the Deceased's funds and in
respect of which Mr Quarles had appointed himself as sole director
following the death of the Deceased.
3 On 28 October 2025, the court made orders in both proceedings
requiring that accounts be taken to ascertain the quantum of the loss
suffered by the Estate and by Moyle Holdings in respect of two of the
breaches which had been established by the plaintiffs at trial, as against
Mr Quarles.2 The account in the Estate Proceeding was ordered to be
taken on a wilful default basis. The accounts were taken at a hearing
on 24 and 25 March 2026.
Hearing on 28 October 2025
4 The orders made on 28 October 2025 were made following a
substantive hearing that day. That hearing had been listed some days
after the court's reasons were published. All parties filed written
submissions and draft orders prior to the hearing, and made oral
submissions at the hearing. The hearing on 28 October 2025 ran for
around 1 ½ hours.
5 The orders were subsequently entered and extracted.
6 As will be seen, Mr Quarles now raises objections to the form of
the orders in certain respects, including the order as to the application
1 Moyle v Quarles [No 3] [2025] WASC 443. Additionally, on 14 November 2025, the court published its
reasons in relation to certain aspects of the costs of the proceedings: Moyle v Quarles [No 4] [2025] WASC
443 (Costs Reasons). There remain outstanding costs issues which will need to be addressed by the parties
and by the court following the publication of these reasons.
2 No account was required in respect of two other breaches of duty on the part of Mr Quarles, which are
referred to in the Primary Reasons at [834(2)] and [834(3)].
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of pre-judgment interest. No objection was raised by Mr Quarles at the
time to that particular order, which had been drafted by the plaintiffs.
Orders made on 28 October 2025
7 In the Estate Proceeding, the court found that Mr Quarles breached
his duties as the executor of the Estate to avoid waste by retaining funds
in low (or no) interest rate bank accounts in excess of that which was
reasonable or necessary to satisfy expenses: Primary Reasons [834(1)].3
8 The court made orders requiring an account be taken on a wilful
default basis to ascertain the quantum of loss suffered by the Estate by
reason of the foregoing breach. Order 1 provided as follows:
An account be taken on a wilful default basis by the Honourable Justice
Lundberg to ascertain the quantum of loss suffered by the Estate by
reason of the first defendant's breach of duty to avoid waste by retaining
funds in low (or no) interest rate bank accounts in excess of that which
was reasonable or necessary to satisfy expenses, on the following bases:
(a) the sum of $30,000 was necessary to be retained by the Estate to
cover its expenses from time to time;
(b) the excess funds above the sum of $30,000 were deployed in
term deposits with the Commonwealth Bank;
(c) the applicable interest rates are those rates which were in fact
obtained by the first defendant on term deposits with the
Commonwealth Bank;
(d) the account be taken in respect of the period from 3 October
2014 to March 2022; and
(e) interest on the loss suffered shall be calculated from the first day
of each month to the date of judgment at 6% per annum,
compounded annually.
9 In the Company Proceeding, the court found that Mr Quarles
breached his duties as a director to exercise reasonable skill and care
(pursuant to s 180(1) of the CA, and in breach of his duties), by
retaining funds in low (or no) interest rate bank accounts in excess of
that which was reasonable or necessary to satisfy expenses: Primary
Reasons [834(4)].4
3 Estate ASOC [32], [34], [35] and [36].
4 Company ASOC [13] - [16].
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10 The court similarly made orders requiring that an account be taken
to ascertain the quantum of loss suffered by Moyle Holdings by reason
of the above breach. Order 1 provided that:
An account be taken by the Honourable Justice Lundberg to ascertain
the quantum of loss suffered by the plaintiff by reason of the first
defendant's breach of duty as director of the plaintiff by retaining funds
in low (or no) interest rate bank accounts in excess of that which was
reasonable or necessary to satisfy expenses, on the following bases:
(a) the sum of $30,000 was necessary to be retained by the plaintiff
to cover its expenses from time to time;
(b) the excess funds above the sum of $30,000 were deployed in
term deposits with the Commonwealth Bank;
(c) the applicable interest rates are those rates which were in fact
obtained by the first defendant on term deposits with the
Commonwealth Bank;
(d) the account be taken in respect of the period from 30 October
2014 to 24 July 2019; and
(e) interest on the loss suffered shall be calculated from the first day
of each month to the date of judgment at 6% per annum,
compounded annually.
Evidence at the account hearing
11 The primary evidence led at the account hearing was the evidence
of Mr Sean Piek, who is an experienced chartered accountant employed
by Mr Quarles' accounting business. Mr Piek was tasked by the parties
with preparing spreadsheets and undertaking calculations to determine
the loss arising from the breaches, in accordance with the orders made
by the court on 28 October 2025 and having regard to the competing
methodologies identified by the parties. I will explain those
methodologies below.
12 Plainly, Mr Piek is not an independent expert, but nothing turns on
this given the approach adopted by the parties and the manner in which
Mr Piek's expertise was deployed. Mr Piek largely performed the role
of assisting the court to understand the spreadsheets and to perform the
necessary calculations.5 In general terms, Mr Piek was not asked by
either party to express an opinion on any contested issue, nor was he
5 ts 895 - 936 (24 March 2026).
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required to bring his accounting expertise to bear in any material
fashion.
13 Mr Piek's spreadsheet analysis was presented by way of
attachments to his affidavit sworn on 16 March 2026 (Piek Affidavit),
which is Exhibit Q1.6 Further calculations were performed by Mr Piek,
which were provided by Mr Quarles' solicitors to both the court and to
the plaintiffs' solicitors on 20 March 2026. Those further calculations
required some additional explanation at the hearing. The updated
spreadsheets, which are identified below, were tendered by Mr Quarles
at the hearing:
(a) the Estate Proceeding Spreadsheet (Sheets 1 and 2) prepared
using Mr Quarles' methodology dated 20 March 2026 (Exhibits
Q2 and Q3);7
(b) the Company Proceeding Spreadsheet (Sheets 1 and 2) prepared
using Mr Quarles' methodology dated 20 March 2026 (Exhibits
Q4 and Q5);8
(c) the Estate Proceeding and Company Proceeding spreadsheets
prepared using the plaintiffs' methodology dated 20 March 2026
(Exhibits Q6 and Q7);9 and
(d) the monthly position for the Estate Proceeding dated 20 March
2026 (Exhibit Q8).10
14 By way of example, I have attached to these reasons the
spreadsheet prepared by Mr Piek which is Exhibit Q3 (see Attachment
B), which demonstrates the shortfall approach employed by the parties.
It is not necessary to attach the remaining versions. This spreadsheet is
largely identical to Exhibit Q2, except for the shortfall periods used and
the pre-judgment interest rate which was applied. In Exhibit Q2, the
interest rate applied throughout was 6% p.a., whilst in Exhibit Q3 the
interest rate is the best available interest rate until prior to
September/October 2018, and the rate of 6% p.a. is only applied from
6 The attachments to this affidavit included updated calculations against the spreadsheets attached to
Mr Piek's first affidavit sworn on 27 November 2025. There were minor corrections to Mr Piek's affidavit
made at the hearing: ts 888 - 889.
7 Correlates to, and updates, Attachments SP3 and Attachment SP4 to the Piek Affidavit.
8 Correlates to, and updates, Attachment SP5 and Attachment SP6 to the Piek Affidavit.
9 Correlates to, and updates, Attachment SP7 and Attachment SP8 to the Piek Affidavit.
10 Correlates to Exhibit P11 (being the plaintiff's Aide Memoire 2 Table of Estate Bank Accounts).
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and including September/October 2018.11 This difference in approach
is addressed as part of Issue 2.
15 There was limited cross-examination and re-examination of
Mr Piek at the hearing.12 In his evidence, Mr Piek provided a thorough
and helpful explanation of the detail within the various spreadsheets.
There were no issues arising as to the credibility or reliability of
Mr Piek's evidence in the circumstances.
16 For completeness, I note that Mr Piek explained the adjustments
he made to the calculations only some days prior to the account
hearing, which resulted in material changes to the quantum. Those
adjustments were required because of mistakes or oversights in the
spreadsheets, not by reason of any conceptual disagreement between
the parties.13 I accept those mistakes or oversights were unintentional.
17 The quantitative difference in outcome between the plaintiffs'
approach and the approach favoured by Mr Quarles, in terms of overall
quantum, is approximately $170,000, as appears in the table below:
Plaintiffs'
Methodology
Mr Quarles'
Methodology
Difference
Estate Proceeding $76,559 $15,12214 $61,437
Company Proceeding $235,899 $128,42815 $107,471
Total $312,458.00 $143,550.00 $168,908.00
The competing methodologies
18 In the period since the accounts were ordered, the plaintiffs and
Mr Quarles each developed their own methodologies for the taking of
the accounts, which were explained in the parties' respective written
submissions.16 As noted above, these methodologies were applied by
Mr Piek, in order to prepare calculations of the loss arising from the
breaches of duty.
11 ts 907 (24 March 2026).
12 ts 936 - 945 (24 March 2026).
13 ts 929 - 932 (24 March 2026).
14 With an alternative amount of $16,776.
15 With an alternative amount of $139,615.
16 Plaintiffs' submissions dated 18 March 2025 (PS); Mr Quarles' submissions dated 18 March 2026 (DS). I
also received brief supplementary submissions following the hearing, namely the plaintiffs' supplementary
submissions dated 27 March 2026 (PS Supp) and Mr Quarles' submissions dated 25 March 2026 (DS Supp).
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19 The methodologies are based upon different foundational
approaches to the account process, and characterise the findings made
by the court as to liability in distinctly different ways. It will be
necessary for the court to determine the correct approach to be
followed. In addition, the methodologies give rise to several narrower
issues impacting the calculations, which it will also be necessary to
address. Before doing so, it is convenient to briefly summarise the
approaches adopted by the parties.
The methodology proposed by the plaintiffs
20 The plaintiffs describe their approach, at its core, as being 'to take
a blank piece of paper and start at the beginning of the accounting
period', taking into account all funds.17 The plaintiffs explain that,
under this approach, funds are 'managed from the start consistently with
the orders for the taking of the account – holding $30,000 (or as close
to as is possible) in a working account while the remainder of the funds
are held in term deposit(s) of 12-month duration'.18
21 The plaintiffs' approach proceeds on the basis that the deposits
which Mr Quarles established after 'prodding' from Mr Moyle are to be
disregarded, other than for identifying the interest rates that may apply.
22 The plaintiffs submit that, on their approach, the account is not
engineered to allow for Mr Quarles' unsophisticated approach of taking
no active steps to consider how to invest funds. The plaintiffs submit
that this reflects the proper approach to adopt, with some caveats.
Namely, to assess what 'steps Mr Quarles could and should have taken
at the start to invest the funds as required by the orders for the
account'.19
23 The plaintiffs characterise the approach promoted by Mr Quarles
as adopting a 'myopic view of the findings and the account'. The
plaintiffs describe Mr Quarles' approach as being to perform the
calculation by only taking into account those amounts he retained in the
'working account' - but otherwise retaining as part of the analysis the
term deposits he 'belatedly' put on after 'prodding' by Mr Moyle
(including those term deposits that he allowed to lapse and did not
immediately reinvest).
17 PS [16] and [37].
18 PS [16].
19 PS [16].
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The methodology proposed by Mr Quarles
24 In broad terms, Mr Quarles submits that his methodology should
be accepted by the court, because it approaches the calculation task in a
way that has regard to actual expenses that were paid out of the DIA (in
the case of the estate) and the CBA Cheque Account (in the case of
Moyle Holdings) from time to time (as well as money coming into
those accounts), and ensures that the DIA and cheque account do not go
into debit or below $30,000.
25 Further, Mr Quarles submits that his methodology 'focuses only on
excess funds in the DIA and cheque account, and leaves untouched the
funds in term deposit investments actually made by [Mr Quarles],
because those investments were not the subject of any adverse finding
by the court, did not occasion any loss and were not the subject of the
orders, and are therefore beyond the scope of these account
proceedings'.20
26 Further, Mr Quarles' submits that the plaintiffs' assessment of loss
should be rejected in its entirety, 'because it is not a calculation of the
loss incurred due to excess funds having been kept in the DIA/cheque
account'.21 Instead, the plaintiff's calculation, according to Mr Quarles,
wrongly 'purports to capture all of the funds held by the estate and
company, including the funds outside of the DIA/cheque account that
had in fact been properly invested in term deposits and as to which no
adverse finding has been made and which are thus irrelevant in the
calculation of loss'.22
27 According to Mr Quarles, the plaintiff's assessment also wrongly
uses, for the early stages of the calculations, inapplicable interest rates,
including an interest rate paid in respect of CBA Pensioner Security
Account 6942, notwithstanding that (a) this was not a term deposit and
(b) there is no evidence about the terms and conditions of that account
or that it would have been open to the first defendant to have
maintained (or placed further) funds in that account.23
20 DS [2].
21 DS [3].
22 DS [3].
23 DS [4].
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Issues for determination
28 The above methodologies, as explained in the parties' submissions
and developed by counsel at the hearing, reveal that the following
issues will require determination by the court:
Issue 1 What length of term deposits should be used?
Issue 2 How is pre-judgment interest on the loss to be calculated?
Issue 3 Whether the term deposits in fact put in place by
Mr Quarles are to be taken into account?
Issue 4 Whether excessive funds are being held in the working
account on Mr Quarles' calculations?
Issue 5 What is the opening term deposit rate?
Issue 6 What are the start and end dates of the accounts?
Issue 7 How is Account 1936 in the Estate Proceeding to be
treated?
29 Of the above issues, Issue 3 gives rise to an issue of principle,
which impacts the other identified issues, and it is appropriate to
address that issue first. Ahead of that, it will be necessary to set out
some orthodox principles and then explain the bases on which liability
was found by the court.
Relevant principles
30 The purpose of the remedy of an account is to determine the
amount due by an accounting party (such as an executor) to the person
entitled to the account (such as a beneficiary), whether at law or in
equity. It has been said that an order for an account, to inquire and
report in relation to a relationship between parties, is not an end in and
of itself. An account is a means to an end; that ultimate end being the
vindication of the applicant's legal or equitable rights: Rowe v National
Australia Bank.24
31 There are three bases for accounting in equity in the context of
monetary remedies against custodial fiduciaries, speaking broadly. The
bases are: an account of administration in common form, an account on
the basis of wilful default, and an account of profits.
24 Rowe v National Australia Bank [2019] WASCA 140 [4] (Quinlan CJ) (Rowe).
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32 In the present case, in the Estate Proceeding, an account has been
ordered on the basis of wilful default in respect of the breach by
Mr Quarles in his capacity as executor. Under such an order the
accounting party must account not only for what has actually been
received, but also for what should have been received: that is, for what
would have been received if the relevant equitable duties of the
accounting party in the administration of the fund or property had been
properly discharged. By this type of order, surcharging on the basis of
wilful default is grounded on misconduct cognisable in equity.25 The
proper approach was explained in In Re Ellis; Ellis v Ellis26 in the
following terms:
…the accounting party will be made liable not merely for any receipts
or payments actually received or made but in respect of the value of
property or income which should have been derived by the estate but
for the wilful breach and to make reparation, often with interest, for
opportunities so incurred.
33 In broad terms, the principle of reparative compensation (as
distinct from substitutive compensation) has been said to apply to an
account on the basis of wilful default, in the sense that the focus is on
reparation for the loss suffered by the relevant breach of duty:
Agricultural Land Management Ltd v Jackson [No 2].27
34 As to the Company Proceeding, the primary basis for damages
advanced by the Moyle Holdings was for compensation pursuant to
s 1317H of the CA, in an amount representing the damages caused by
Mr Quarles' contravention of s 180(1) of the CA. It was not suggested
by either party that the approach to be adopted in respect of the
Company Proceeding, in broad terms, should differ from the approach
to the account in the Estate Proceeding, and I have proceeded on that
assumption.28
35 Section 1317H relevantly provides:
(1) A Court may order a person to compensate a corporation,
registered scheme or notified foreign passport fund for damage
suffered by the corporation, scheme or fund if:
25 Rowe [99] (Murphy JA and Sofronoff AJA).
26 In Re Ellis; Ellis v Ellis [2015] WASC 77 [126] (EM Heenan J) (Re Ellis).
27 Agricultural Land Management Ltd v Jackson [No 2] [2014] WASC 102; (2014) 48 WAR 1 [334] -
[349] (Edelman J, as his Honour then was) (Agricultural Land Management). See PS Supp [1] - [3].
28 As to which, see the observations of Edelman J at [452] in Agricultural Land Management.
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(a) the person has contravened a corporation/scheme civil
penalty provision in relation to the corporation, scheme
or fund; and
(b) the damage resulted from the contravention.
The order must specify the amount of the compensation.
Note: An order may be made under this subsection whether or not a
declaration of contravention has been made under section
1317E.
36 Only damage that has 'resulted from' a defendant's contravention
of the relevant statutory provision can be the subject of a compensation
order under s 1317H of the CA. This test will be satisfied if the
defendant's acts or omissions were so connected to the damage suffered
by the corporation that, as a matter of ordinary common sense and
experience, they should be regarded as the cause.29 It is generally
necessary, but not always sufficient, for the plaintiff to prove that its
loss would not have been suffered but for the defendant's breach of
duty.
Basis on which liability was found in the Estate Proceeding
37 In order to understand the basis on which the court found
Mr Quarles was liable at trial in the Estate Proceeding, it is necessary to
rehearse some of the salient factual findings which were made.
38 Prior to the grant of probate on 3 October 2014, the Estate
consisted primarily of cash held in three accounts with the CBA (in the
amount of approximately $3.27m), a property in Dianella Property, and
a refund due to the Estate in respect of a lease bond paid by the
Deceased to an aged care facility (in the sum of $975,000).30
39 The three accounts with the CBA referred to above were:31
(a) a CBA Pensioner Security Account, being Account 6942, which
held $384,462 at the time it was closed in November 2014;
(b) a CBA term deposit account identified as Account 1928, which
held $1,336,917 at the time it was closed in November 2014;
and
29 Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 75 ACSR 1
[7311] - [7312]; Agricultural Land Management [449] - [451] (Edelman J).
30 Primary Reasons [55].
31 Primary Reasons [57].
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(c) a CBA term deposit account identified as Account 1936, which
remained open as an account until March 2018, at which time
the sum of $907,979 was held in the account, which was
transferred in April 2018 to a fresh term deposit account, being
Account 4235, to establish a term deposit in the sum of
$1 million.
40 Further, on 28 October 2014, Mr Quarles opened a fresh account
with the CBA, being the DIA or 'direct investment account'.
Mr Quarles used the DIA as the principal operating account for the
Estate during the administration. The opening balance of the DIA was
$1,720,398.52, comprising the funds formerly held in the CBA
Pensioner Security Account and the funds in the term deposit Account
1928.32 In March 2015, approximately $1.0m was deposited into the
DIA, being the refund of the Deceased's accommodation bond.33
41 In addition to the DIA, over time, Mr Quarles opened four further
accounts with the CBA, all being term deposit accounts.34
(a) a CBA term deposit, being Account 8439, opened in March
2015 with a deposit of $1,500,000 using funds held in the DIA;
(b) a CBA term deposit, being Account 4498, opened in April 2015
with a deposit of $500,000 using funds held in the DIA;
(c) a CBA term deposit, being Account 4235, opened in February
2018 with a deposit of $1,000,000 using the funds which had
formed Account 1936; and
(d) a CBA term deposit, being Account 4294, opened in October
2018 with a deposit of $600,000 using some of the funds which
had formed Account 8439.
42 A detailed spreadsheet was prepared by the plaintiff at trial which
showed the funds held in the bank accounts of the Estate over the
period from July 2014 to March 2022. That spreadsheet also showed
the movement of funds between the accounts over that period, as
Mr Quarles moved funds to establish additional term deposit accounts.
32 Primary Reasons [58].
33 TB 479 (Letter from RSL Care WA to Mr Quarles dated 20 March 2015).
34 Primary Reasons [60]; Exhibit P8 (Statement of Agreed Facts); and Exhibit P11 (Plaintiff's Aide Memoire
2 - Table of Estate Bank Accounts).
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43 The diagram below shows the movement of the Estate's funds, in
actuality, through the establishment by Mr Quarles of term deposits, at
least in broad terms.
44 In the above factual circumstances, the first breach found by the
court was the breach by Mr Quarles of his duties as the executor of the
Estate of the Deceased (being the 'second issue' determined at trial – see
the conclusion at [834(1)]). In particular, in the Estate Proceeding, the
court found that Mr Quarles breached his duties as the executor of the
Estate to avoid waste by retaining funds in low (or no) interest rate
bank accounts in excess of that which was reasonable or necessary to
satisfy expenses: Primary Reasons [834(1)].35
45 The court's findings in relation to the assets and accounts of the
Estate, and the manner in which Mr Quarles applied those funds in fact,
are set out at [54] to [62] of the Primary Reasons. The conclusions
I reached at trial in respect of the breach are summarised at [553] to
[559] of the Primary Reasons.
Basis on which liability was found in the Company Proceeding
46 I turn next to the Company Proceeding and the basis on which
liability was found at trial.
47 As at 23 July 2014, the assets of Moyle Holdings comprised cash
at bank in one account, in the sum of $3,948,774. The account was the
Premium Business Cheque Account held at the CBA (referred to as the
CBA Cheque Account).36 On the date probate was granted, being
3 October 2014, the balance of the CBA Cheque Account had increased
to $3,965,824.42.37
35 Estate ASOC [32], [34], [35] and [36].
36 Primary Reasons [65] and [66].
37 Primary Reasons [68].
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48 A detailed spreadsheet was prepared by the solicitors for the
plaintiffs at trial showing the funds held in the three bank accounts of
the Company over the period from July 2014 to August 2019. That
spreadsheet showed the movement of funds between the accounts over
that period, as Mr Quarles moved funds to establish additional term
deposit accounts.38
49 On two occasions, Mr Quarles caused funds from the CBA
Cheque Account to be transferred to term deposit accounts held at the
CBA. On both occasions, this was done by Mr Quarles only following
the receipt of a letter sent to him by Mr Moyle's solicitors.39 In April
2015, Mr Quarles established a CBA term deposit, being Account 7510,
in the sum of $3.6m. Later, in August 2017, Mr Quarles established
another CBA term deposit, being Account 2758, in the sum of
$800,000.
50 The diagram below shows the movement of the company's funds,
in actuality, through the establishment by Mr Quarles of two term
deposits.
51 In the above factual circumstances, the second breach is the breach
by Mr Quarles of his duties as a director of Moyle Holdings (being the
'eighth issue' determined at trial – see the conclusion at [834(4)]). This
second breach was found as being a breach of Mr Quarles' duties as a
director, whether formulated pursuant to s 180(1), or at common law, or
in equity.
52 In particular, in the Company Proceeding, the court found that
Mr Quarles breached his duties as a director to exercise reasonable skill
and care pursuant to s 180(1) of the CA, by retaining funds in low (or
no) interest rate bank accounts in excess of that which was reasonable
or necessary to satisfy expenses: Primary Reasons [834(4)].40
38 Primary Reasons [67].
39 Primary Reasons [68] - [70].
40 Company ASOC [13] - [16].
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53 The court's findings in relation to the assets and accounts of Moyle
Holdings, and the manner in which Mr Quarles applied those funds in
fact, are set out at [64] to [72] of the Primary Reasons. The conclusions
I reached at trial in respect of the above breach are summarised at [762]
to [760] of the Primary Reasons.
54 Having reviewed the bases for liability and the factual context, I
will now address Issue 3.
Disposition of the Issues
Issue 3 – Whether to recognise the term deposits established in fact
by Mr Quarles?
55 I have, in effect, summarised the competing submissions advanced
by the parties in respect of Issue 3 at [19] to [27] above. At its core, the
difference of position between the parties is whether, as a matter of
principle and having regard to the findings made by the court, it is
appropriate to undertake the account in each proceeding by starting
with a 'blank piece of paper' and take into account all funds, or to
accept as immutable the decisions and steps taken by Mr Quarles to
establish certain term deposits over time.
56 In my view, the plaintiffs' approach to this issue is correct and
must be accepted. I have reached that view for the following reasons.
57 First, the account in each proceeding should be taken by reference
to the orders made by the court on 28 October 2025 and in a manner
which is consistent with the factual findings made by the court.
58 Second, the court found at trial that Mr Quarles adopted a
'relatively unsophisticated approach' to the investment of the funds of
the Estate,41 and a similar approach in relation to the investment of the
large sum of money held by the company.42 He opened term deposit
accounts on a sporadic basis only after being prodded or prompted by
Mr Moyle. Mr Quarles opened the term deposits without turning his
mind to how best to manage the funds he controlled.43 The findings at
trial included the following (in respect of the Estate Proceeding):
[556] Mr Quarles was a certified practising accountant of some
considerable experience. It is apparent that he did not turn his
mind, to the extent required, to the ability to invest additional
41 Primary Reasons [553].
42 Primary Reasons [762].
43 Primary Reasons [556] and [763].
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funds held by the Estate in term deposits with the
Commonwealth Bank, in respect of which he would have not
exposed the Estate to penalties for early redemption. The early
redemption issue appears to have been the primary reason
Mr Quarles formed the view that the excess funds ought be
retained in the DIA. Mr Quarles could have obtained better
returns by investing more of the funds of the Estate in the term
deposits with the Commonwealth Bank, and ought to have done
so.
[557] In this respect, I consider Mr Quarles did not exercise the care,
diligence and skill that a prudent person would exercise in
managing the affairs of other persons. Mr Quarles did not seek
investment advice about the large sum of funds held by the
Estate, and did not undertake a budgeting exercise to determine
the available funds which could have been deployed in term
deposits. That would have been a fairly simple exercise, which
should have been apparent to Mr Quarles at the time. This
cannot be said to be an application of a standard of perfection, or
merely a criticism levelled in hindsight. There is no evidence of
Mr Quarles undertaking a review of the investments on a regular
basis, or at all, during the administration.
[558] In short, Mr Quarles adopted an overly cautious approach to the
deployment of the funds and gave no active consideration to the
ability to earn additional interest in a manner which would not
have exposed to the Estate to loss or additional expense.
59 Third, to undertake the account by reference to, and constrained
by, the actual term deposits established by Mr Quarles, which were not
opened by him by reference to a considered approach to investing funds
to earn additional interest and which resulted in excessive funds being
retained, would be inconsistent with the findings of the court. Indeed,
as submitted by the plaintiffs, it would compound the breach of duties
found by the court. The following submissions advanced by the
plaintiffs should be accepted in this regard:44
The approach of performing the calculations to maintain the term
deposits that Mr Quarles belatedly put on (the delay in putting those
deposits on being a breach of his duties) is to then assume that
Mr Quarles in any case would have breached his duties by placing
funds on term deposits belatedly. That approach is inconsistent with the
findings and orders for the account. It in effect seeks to play “catch up”
with Mr Quarles' passive role in managing the funds held by the estate
and Moyle Holdings, and seeks to excuse his failures to have placed
term deposits on earlier.
44 PS [42(b)].
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60 Fourth, it may be accepted that the court did not expressly state, as
a finding, that the actual term deposits established by Mr Quarles
amounted to a breach of duty by failing to obtain higher rates of interest
or otherwise. Nonetheless, a core finding made following trial was that
Mr Quarles breached his duties by holding excess funds in the working
accounts for the Estate45 and for Moyle Holdings.46 The court found, in
respect of the Estate funds:47
Further, Mr Quarles retained large amounts in the DIA, beyond the
amount reasonably required to cover any expenses of the Estate.
Mr Quarles did not undertake a budgeting exercise to determine the
quantum of funds he required on a month-to-month basis to satisfy the
expenses of the Estate, and so the amount retained in the DIA was not a
reflection of an amount required for that purpose.
61 The plaintiffs correctly submit that the breach as found necessarily
captures the delays on the part of Mr Quarles in placing funds into term
deposits after being prodded by Mr Moyle. The breach occurred at the
outset of Mr Quarles' appointments as executor and director, and
continued throughout the accounting periods which followed. I accept
the submission advanced by the plaintiff that the findings of the court in
this matter should not be approached in a narrow manner.48 Counsel
for the plaintiffs submitted as follows at the account hearing:49
[We] would encourage the court not to approach your Honour's findings
with a narrow focus, but rather in the context of the proceedings and the
issues that arose in the proceedings.
The core complaint against Mr Quarles was that he took inadequate
steps to manage the funds in the estate and in Moyle Holdings. He was
passive, gave no active or real consideration to how best to manage the
funds, didn't undertake any budgeting or forecasting exercises in order
to assess how to allocate the funds between a working account and
putting funds into term deposits, and so while he did eventually, at
various stages, put on term deposits, those were sporadic and generally
prompted by Mr Moyle communicating through his solicitors raising
concerns about Mr Quarles' inactivity and failure to properly consider
these matters and to take steps earlier.
And so … it's clear from your Honour's findings that Mr Quarles was
delinquent in his duties. He failed to invest the funds as a prudent
45 Primary Reasons [552], [554], [557] and [561].
46 Primary Reasons [763], [764] and [779].
47 Primary Reasons [554].
48 ts 947 (24 March 2026).
49 ts 947 - 948 (24 March 2026).
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person would do in his place, and so while he put funds on belatedly,
that was only after prompting or prodding.
It was … without any real sophistication or consideration for how much
he should be putting into deposits, allowed term deposits to lapse and
the funds to be transferred into low interest holding facilities at times
rather than having deposits roll over and maintain earnings at the high
rates that would be available in a term deposit, and there was really no
justification – or there was no justification for Mr Quarles not taking
steps earlier in both the estate and in the company as a director to place
term deposits at an earlier time rather than being waited – waiting to be
prompted to do so at various stages along the way.
62 I accept the above submission.
63 Fifth, adopting the plaintiffs' suggested approach is consistent with
the principled approach, set out at [32] above, for an account on a
wilful default basis. That is, to assess what would have been received if
the relevant equitable duties of the accounting party had been properly
discharged, having thereby failed to obtain a benefit for the fund.50
64 It was not submitted by Mr Quarles that a different approach
might be taken in respect of the account in the Company Proceeding,
relative to the Estate Proceeding.
65 I should observe that the plaintiffs' contentions concerning the
transfer of funds by the CBA into holding facilities did not strengthen
its overall submission on this issue.51 The point was adequately
rebutted by counsel for Mr Quarles during his oral submissions, noting
that, although the funds were, as a matter of fact, transferred to a
holding facility with a lower rate of interest, the interest in question was
being compounded weekly, rather than annually.52
66 Accordingly, I accept that the proper approach is to assess what
Mr Quarles should have done from the outset, unconstrained by the
actual term deposits which Mr Quarles in fact established, in order to
achieve the parameters set by the court for the taking of the account, as
described in the orders made on 28 October 2025. The account should
not be undertaken on the assumed basis that Mr Quarles would breach
his duties as executor or as director. It should adopt a clean slate
approach, examining what a compliant fiduciary would have done.
50 Agricultural Land Management [347] - [349] (Edelman J); Re Ellis [145] (EM Heenan J).
51 Referring, for example, to the correspondence from the CBA at TB 3834 and TB 3838. See also ts 989 -
993.
52 ts 977 - 979 (24 March 2026).
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Issue 1 – What length of term deposits should be used?
67 The parties adopted different assumed lengths for the term
deposits as part of their respective analyses. The different approaches
stem, in part, from the conceptual approaches adopted by the parties to
Issue 3.
68 One impact from the use of term deposits as an investment
mechanism is that it can result in significant funds being retained in the
working accounts for some periods. This is an outcome or state of
affairs which the court criticised in the Primary Reasons. As counsel
for Mr Quarles noted, this is a function of the use of term deposits
which mature over a particular period.53 Fundamentally, though, the
account process was intended to compensate the plaintiffs for the
conduct on the part of Mr Quarles which meant that excess funds were
held in low interest accounts. So, the account process should minimise,
to the extent possible, this state of affairs.
69 The plaintiffs proposed that the court, for the purposes of the
analysis, adopt term deposits of 12 months, while Mr Quarles largely
proposed 6 month term deposits.54 The plaintiffs submit that the
approach adopted by Mr Quarles was driven by his desire to have
greater flexibility to manage the funds in the account in order to match
the term deposits he in fact established after 'prodding' from Mr Moyle.
70 The plaintiffs submit that the defendant's approach of using
6 month deposits has only been promoted to enable Mr Quarles to have
funds available at relevant times to be able to move money into one of
the term deposits that he opened, consistent with his approach to Issue
3. The plaintiffs say that, if the court rejects Mr Quarles' approach to
Issue 3, then it would prefer the approach promoted by the plaintiffs,
namely using 12 month deposits.
71 Mr Quarles submitted that the use of 3 month term deposits, in the
initial part of the analysis, was undertaken in order to minimise the
funds in the working balance during the first 6 months, having regard to
the court's finding that excess funds in the DIA should have been
invested in term deposits.55 Thereafter, this analysis assumes term
53 ts 968 (24 March 2026).
54 Mr Quarles also proposed the use of 2 - 3 month term deposits at the start of the accounting period in the
Estate Proceeding.
55 DS [15(l)].
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deposits would be for a 6 month period, being a 'logical compromise'
between the 3 month and 12 month term deposits.56
72 Further, Mr Quarles' submits that it would be unrealistic to
continue with 3 month term deposits indefinitely as the renewal of term
deposits every 3 months would involve an unnecessary or unreasonable
amount of work for an executor. In addition, it may be inferred that
interest rates on 3 month term deposits would usually be lower than
6 or 12 month term deposits.57 Mr Quarles contends that 12 month
deposits would 'increase the funds required in the DIA working balance
at the outset of each 12 month term deposit period and would
correspondingly reduce the funds available for investment in the
hypothetical term deposit'.58
73 The resolution of this issue is driven, in my view, by the flexibility
point advanced by counsel for Mr Quarles.59 That is, having 6 month
term deposits avoids the need for excess funds to be held in the working
accounts. One of the essential rationales of the account which has been
ordered is the need to avoid this outcome.
74 There is no doubt that 6 month term deposits were in fact available
during the relevant period. I would be prepared to take judicial notice
of this, but the defendant's aide memoire demonstrates the point in any
event.60 That is not to say that the analysis is to be undertaken by
reference to the actual term deposits established by Mr Quarles,
contrary to my conclusion on Issue 3 – the length of the term deposits
should not be driven by any need to create liquidity to match the actual,
sporadic approach taken by Mr Quarles. Rather, the aide memoire
demonstrates that the use of 6 month term deposits as part of the
account analysis is not an unrealistic approach.
75 As part of the analysis, I have considered the correlation between
the length of the term deposits and the applicable interest rate, noting
that, in general terms, a longer term would attract a higher rate of return
on the deposit.
56 DS [15(m)].
57 DS [15(m)].
58 DS [15(m)].
59 ts 1005.
60 See also ts 965 - 967 (24 March 2026), and the first defendant's aide memoire headed ' source of best
available interest rate'.
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76 In my view, therefore, the account in both proceedings should be
undertaken on an assumed basis that the term deposits are for 6 month
periods, save where the parties have otherwise agreed.
Issue 2 – How is pre-judgment interest on the loss to be calculated?
77 The plaintiffs draw attention to order 1(e) of the orders made on
28 October 2025, which the plaintiffs say should be faithfully applied
to the accounting exercise, and which provides as follows:61
…interest on the loss suffered shall be calculated from the first day of
each month to the date of judgment at 6% per annum, compounded
annually.
78 The approach submitted as appropriate by Mr Quarles is to apply
the applicable term deposit interest rate, rather than 6%, up to the date
the Hotchpot Adjustment calculation was finalised in September 2018,
and then 6% thereafter.62
79 The plaintiffs submit that the approach of Mr Quarles is
inconsistent with the orders made on 28 October 2025. Mr Quarles
seeks to address this by either applying for the orders of 28 October
2025 to be varied or for the issue to be dealt with by way of an
adjustment to the overall quantum. The plaintiffs say the court should
do neither.
80 As earlier noted, no objection was raised by Mr Quarles at the
hearing on 28 October 2025 to this particular order. Any concerns as to
the form of this order should have been raised at that time. In the
circumstances, the submission now advanced by Mr Quarles to modify
this order is not capable of being accepted as forming part of an
exercise of the 'liberty to apply',63 or pursuant to the slip rule in O 21
r 10 of the RSC.64 Neither is applicable.
81 Mr Quarles must therefore persuade the court that the
interlocutory orders should be varied. I accept the court has jurisdiction
in this regard.65 That is, it is open to discharge or vary an earlier
interlocutory order. The discretion to do so should be exercised
according to the interests of justice. This will encompass the interests
61 PS [24] - [36].
62 DS [16], [23] - [25].
63 Prop West Pty Ltd v Ood Investments Pty Ltd [2010] WASC 154 [12] - [14] (Le Miere J).
64 Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 4] [2015]
WASCA 253 [28] (Martin CJ).
65 Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [23] - [24] (Steytler P) and
[70] (Pullin JA).
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of the parties and the public in the efficient management of the
interlocutory processes involved in civil litigation.
82 The order should be varied, in my view, as submitted by counsel
for Mr Quarles.66 The following matters justify that course.
83 First, it should be recalled that the loss suffered in the present
circumstances (being the additional money which the estate should
have received) is the interest that should have been earned had more of
the funds been invested on term deposit.
84 Second, order 1(e) represents an award of pre-judgment interest.
Such an award is compensatory in nature and in the nature of
damages.67 It compensates the plaintiff for having been 'kept out of
money' which was due to that party. As Mr Quarles correctly submits,
such an order should do no more than to assist in the restoration of the
plaintiff to the position in which he or she would have been but for the
defendant's conduct.
85 Third, as presently formulated, order 1(e) refers to interest on the
loss suffered being calculated from the first day of each month.
However, under the calculations prepared by Mr Piek:
(a) an additional increment of loss occurs only at the end of every
term deposit during the period between October 2014 and
March 2022; and
(b) pre-judgment interest (at 6%) is applied to each of those new
increments of loss from the end of each term deposit period
until judgment.
86 Given the findings of the court, I accept this is not a case where
6% interest is a suitable proxy for the likely best use of the funds which
the plaintiff had been kept out of. That is because the only likely use of
any extra funds (up until the Hotchpot Adjustment was agreed) would
have been to reinvest them in term deposits.
87 Fourth, faithfulness to the compensation principle referred to
above requires that the award of pre-judgment interest in respect of the
losses should be at the applicable term deposit interest rate for the
66 ts 908 (24 March 2026) and 1006 (25 March 2026).
67 Haines v Bendall [1991] HCA 26; (1991) 171 CLR 60, 66; Province Leader of the Oceania Province of
the Congregation of the Christian Brothers v Lawrence [2021] WASCA 77 [57] - [61] (Buss P, Murphy
and Vaughan JJA)
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period until the Hotchpot Adjustment was agreed (which was in
September 2018). Thereafter, the rate of 6% should be applied.
Counsel for Mr Quarles explained his client's contention as follows,
with which I respectfully consider to be persuasive:68
…our argument [is] that up until the Hotchpot was determined in
September 2018, six per cent wasn't the appropriate rate because there
wasn't a better use that could have been made of the money by the
plaintiff because it was going to stay in the estate and it was only going
to be invested on term deposits. So although six per cent is a proxy in
some cases for the best use that could have been made of the money,
our argument is that, in this case, it's not the suitable proxy because the
money was … going to stay in the estate. There was going to be no
distributions until the Hotchpot was determined.
88 Fifth, order 1(e) was not an order which finally disposed of any
rights of the parties. The order set out the basis upon which an account
was to be taken. The order is thus interlocutory in nature, rather than a
final order.
89 Sixth, there is no prejudice to the plaintiff in now varying order
1(e), nor are there compelling case management issues which militate
against that approach. The principle of finality of proceedings carries
less weight in the present circumstances.
90 Accordingly, order 1(e) in both proceedings should be varied in
the manner sought by Mr Quarles. That is, order 1(e) in both
proceedings shall be varied so that the best available interest rate is to
be applied until the September /October 2018 period, and from that
period (and including that period) the rate of 6% p.a. should then be
applied.
Issue 4 – Excessive funds held in the working account
91 The plaintiffs criticise the approach adopted by Mr Quarles to the
calculations for the account in the Company Proceedings on the basis
that it would result in the working account holding around $850,000
between March 2017 and July 2017. This arises because of the
approach adopted by Mr Quarles in relation to Issue 3 above, which
requires the assumption that Mr Quarles established the term deposit
referred to as Account 2758 in August 2017. Holding excess funds in
the working account is one of the primary criticisms I accepted at trial
in relation to the conduct of Mr Quarles.
68 ts 908 (24 March 2026).
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92 The plaintiffs submit the court should not endorse an approach by
which a substantial sum of money is held in the working account, given
the findings made by the court. As I have explained in relation to Issue
3 above, I accept the plaintiffs' submissions in this regard.
93 Mr Quarles submits that he has dealt with this issue by adopting
the shorter term deposit periods reflected in his revised spreadsheets.
That is not a complete answer to this issue, in my view. I have
addressed this aspect of the matter separately under Issue 1 above.
Issue 5 – What opening term deposit rate should be applied?
94 This issue concerns the operation of order 1(c) of the orders made
on 28 October 2025, which provides that:
(c) the applicable interest rates are those rates which were in fact
obtained by the first defendant on term deposits with the
Commonwealth Bank.
95 There is a dispute between the parties as to the 'applicable interest
rates'.69 Both parties accept that the rates might vary over the account
period.
96 Insofar as the Estate Proceedings are concerned, the evidence at
trial was to the effect that two term deposits were on foot at the time
Mr Quarles was appointed as the executor (and had in place prior to
July 2014). I refer to Account 1928 and Account 1936, both of which
were earning interest at 2.5%. Additionally, the CBA Pensioner
Security Account was in place at the time, earning interest at 3.5% on
large deposits.
97 The plaintiffs submit that:70
In circumstances where the Pensioner Security Account was earning
3.5%, the Court can infer that a term deposit placed at that time would
have been able to earn a similar amount of interest, not the lower 2.5%
which would have been secured sometime before the Deceased passed
away.
98 The plaintiffs further submit that, in the estate calculation, a
second term deposit may be utilised to reflect the rolling over of
Account 1936. In this regard, the plaintiffs accept that the rate of 2.6%
may be applied (being the same rate proposed by Mr Quarles), rather
69 PS [50] - [53]; DS [32] - [40].
70 PS [52].
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than the rate of 2.89% which appears in Exhibit Q5,71 as explained by
Mr Piek in his evidence.72
99 Mr Quarles has explained in his submissions why the use of the
CBA Pensioner Security Account rate is inapposite, both in the Estate
Proceedings and the Company Proceedings.
100 I respectfully agree with those reasons. First, the CBA Pensioner
Security Account is not a term deposit account. Second, the findings
and reasons of the court require that the excess funds be deployed in
term deposits. Third, the rate of 3.5% was only applicable to funds in
excess of $46,000. Fourth, the evidence does not permit the court to
conclude that Mr Quarles could have placed additional estate funds in
the existing CBA Pensioner Security Account or opened a new similar
account, and if so upon what terms and conditions. Fifth, there is no
evidence that Moyle Holdings (in the context of the Company
Proceedings), as distinct from Mr Quarles as executor of the Estate,
would have been able to open a 'pensioner security account' with the
CBA.
101 In my view, the available evidence supports the conclusion that
the interest rate initially applicable to term deposits (used in relation to
the funds of the Estate) as at 2 March 2015 was 2.5%. This rate was
applicable to Account 1936 (which was invested on 12 September 2014
and initially matured on 12 March 2015). Accordingly, it is appropriate
that the rate of 2.5% be applied as the opening term deposit rate in both
proceedings, and then the rate of 2.6% should then be applied to the
first hypothetical term deposit, bearing in mind the plaintiff's
concession in the latter respect.
Issue 6 – What are the start and end dates for the accounts in the
Estate Proceeding?
102 There is no disagreement between the parties as to the start and
end dates of the account process in the Company Proceeding.73 The
dispute as to these dates arises only in respect of the Estate
Proceeding.74 The issue emerges from order 1(d), which provides that:
(d) the account be taken in respect of the period from 3 October
2014 to March 2022.
71 ts 1016 (25 March 2026).
72 ts 912 (24 March 2026).
73 PS [59]; DS [49].
74 PS [54] - [58]; DS [41] - [48].
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103 The plaintiffs submit that the start date should be 3 October 2014,
being the date on which probate was granted, and the end date should
be 23 March 2022, which is when CIV 1279 of 2022 was commenced.
104 In contrast, Mr Quarles contends the start date should be
17 November 2014, which is the date on which the funds were first
transferred into the DIA (it having been opened on 28 October 2014).
He further submits the end date should be 16 March 2022 having regard
to the monthly periods used by Mr Piek which commence on the 17th of
each month.
105 As to the start date, the orders plainly refer to 3 October 2014.
That order was made following a contested hearing. I have referred to
the context of that hearing earlier in these reasons. Mr Quarles submits
that the order permits on its face the account process to be undertaken
in the manner it proposes. However, if it does not, the order should be
corrected, whether pursuant to the liberty to apply, the slip rule, or the
power to vary the order.
106 Mr Quarles submits that an excess of funds could not have been
held in the DIA until funds were first placed into that account. He
notes that, until 17 November 2014, the funds of the Estate were
entirely in the CBA Pensioner Security Account and term deposits. For
this reason, Mr Quarles' calculations commence from 17 November
2014. Further, he says the parties overlooked the fact that funds were
not placed in the DIA until 17 November 2014. It should be inferred
that, had that evidence been brought to the court's attention at the time,
the start date would have been ordered to be 17 November 2014.
107 Mr Quarles also relies on the second supplementary decision
referred to as Orchard Holdings v Paxhill.75 In that case, the slip rule
was applied to vary a final order to add an order for pre-judgment
interest in circumstances where the successful party omitted to seek
interest. The court regarded it as relevant that pre-judgment interest
may be essential to achieve proper compensation. Allanson J held in
that case as follows:76
The slip rule should not be used to vary a judgment in a matter of
discretion on which real differences of opinion may exist. But the rule
has been applied where interest has been omitted. There are three
matters which, in my opinion, resolve this issue in favour of the
application of the rule. First, the claim for interest is not an
75 Orchard Holdings v Paxhill [2012] WASC 271 (S2) [10] - [13] (Allanson J).
76 Orchard Holdings v Paxhill [23].
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afterthought, but was claimed in the prayer for relief. Second, as noted
above, the orders sought reflected the reasons for judgment. Third,
while there is no doubt an exercise of discretion in the award of interest,
including in choosing the proper rate to be applied, the cases show that
the award of pre‑judgment interest may be essential to achieving proper
compensation for the loss suffered. In this case, where Orchard
Holdings was heavily indebted to Westpac, which had provided the
finance for the apartment development, I cannot see how the damages
can be a proper measure of compensation if no allowance is made for
the detriment that flows from it being deprived of the use of the money
between the date of accrual of the loss and the date of judgment. That
is, the discretion to award interest would, if exercised judicially, have
resulted in a decision to award interest. Orchard Holdings has put
forward a conservative rate (6%) as the basis for its present
calculations.
108 In my view, order 1(d) in the Estate Proceeding, as presently
formulated, is consistent with the approach proposed by Mr Quarles, in
the sense that the form of the order sets out the parameters of the
account period, but does not define losses which did not exist and
which could not, on any view, have existed. The losses in this matter
only relevantly commenced on 17 November 2014, not on 3 October
2014.
109 Strictly speaking, then, the order itself does not require any
modification. However, it seems to me, given the dispute between the
parties, for the avoidance of doubt and to provide greater clarity for the
account process, it would be preferable to clarify the form of the order.
In my view, this can most properly be done using the slip rule. This is
appropriate given:
(a) the undisputed evidence at trial as to when the funds were first
transferred into the DIA;
(b) this issue appears to have been overlooked at the hearing in
October 2025; and
(c) unless the order is properly clarified, there is likely to be an
injustice to the defendant.
110 Proper compensation to the plaintiffs will be achieved if the
account process in respect of excess funds in the DIA commences from
the first date on which funds were actually transferred to the DIA.
111 I do not assess this circumstance as falling within the category of
cases in which the slip rule is being used to vary a judgment in a matter
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of discretion on which real differences of opinion may exist, using the
language of Allanson J in Orchard Holdings v Paxhill. The issue
which presently arises is the commencement date for the account
process, and whether it accords with the evidence and findings at trial.
112 The start date should therefore be 17 November 2014.
113 As to the end date, there is very little difference between the
parties in this regard and on balance it seems to me to be efficacious to
apply the overall monthly methodology of Mr Quarles, using the 17th of
each month as a commencement point for each monthly cycle.
Accordingly, the end date should be 16 March 2022.
Issue 7 – How should Account 1936 be treated?
114 The term deposit referred to as Account 1936 had been established
at the time Mr Quarles was appointed as the executor. It had been
opened by the Deceased prior to his death, using $850,000 in funds
held by the Estate. This term deposit was rolled over on 6 month terms
through until March 2018, by which point it had grown to
approximately $900,000.
115 Consistent with their position on Issues 1 and 3 above, the
plaintiffs submit that this term deposit should have been rolled over on
hypothetical 12 month term deposits after it initially matured. This
explains why the plaintiffs' calculations refer to two hypothetical
12 month term deposits.77 Mr Quarles submits, consistent with his
position on Issue 3 above, that Account 1936 is simply irrelevant to the
account and should play no part in the calculation of the loss.78
116 For the reasons expressed above in relation to Issues 1 and 3, the
approach favoured by the plaintiffs must be accepted. Although
Account 1936 was in fact established by the Deceased, and not by
Mr Quarles, that does not wholly determine this issue. Rather, what is
important is that this term deposit was rolled over by Mr Quarles in his
capacity as executor, through until 2018.79 Mr Quarles' treatment of
this term deposit was infected by the same approach of passivity which
the court criticised in the Primary Reasons at [557] – [558]. Had
Mr Quarles taken the steps he ought to have taken, as a custodial
fiduciary, the funds held in Account 1936 ought to have been applied,
77 PS [60] - [61].
78 DS [50] - [51].
79 An issue which was expressly pleaded by the plaintiffs in the Estate Proceeding at [31] and [32] of the
Estate ASOC, which formed part of the claim at trial.
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together with the other available funds, in a considered manner focused
on achieving better returns for the Estate.
117 The account process in the Estate Proceeding should therefore
proceed on the basis that the funds in Account 1936 became available
in March 2015, being the first period the term deposit matured,80 and be
treated in the manner set out elsewhere in these reasons as to the
interest rate and length of the term deposit going forward.
Conclusion and orders
118 For the foregoing reasons, I consider the issues raised by the
parties should be resolved in the manner set out in Attachment A. I
will publish these reasons administratively and make directions in each
proceeding as follows:
(a) within 7 days of the date of these reasons, the parties shall
provide to the court draft minutes to give effect to these reasons,
in each proceeding;
(b) within 14 days of those orders being made, the parties are to
undertake a re-calculation of the loss and damage suffered by
the Estate in the Estate Proceeding, and by Moyle Holdings in
the Company Proceeding, on the bases outlined in these
reasons, for further consideration by the court; and
(c) both proceedings will otherwise be adjourned to a final hearing,
on a date to be fixed, for final orders to made and for any
remaining substantive issues including costs to be addressed.
119 If the parties have any queries as to the terms of the above
directions, or the practical steps required hereafter to finalise the
proceedings, the parties have liberty to approach my chambers by email
to seek clarification.
80 ts 1002 (25 March 2026).
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I certify that the preceding paragraph(s) comprise the reasons for decision of
the Supreme Court of Western Australia.
IR
Associate to the Hon Justice Lundberg
4 MAY 2026
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ATTACHMENT A
Summary of the court's determination
Issue Description of the Issue Determination of the Issue
1 What length of term deposits
should be used?
The account process in both proceedings
should be undertaken on the assumed basis
that the term deposits are for 6 month
periods, save where the parties have agreed
otherwise.
2 How is pre-judgment interest on
the loss to be calculated?
Order 1(e) in both proceedings shall be varied
in the manner proposed by Mr Quarles. That
is, the best available interest rate should be
applied until the September /October 2018
period, and from that period (and including
that period) the rate of 6% p.a. should be
applied.
3 Whether the term deposits in
fact put in place by Mr Quarles
are to be taken into account?
The plaintiffs' submissions should be
accepted such that the account process in
both proceedings should be undertaken by
assessing what Mr Quarles should have done
from the outset, unconstrained by the actual
term deposits which Mr Quarles established.
4 Whether excessive funds are
being held in the working
account on Mr Quarles'
calculations?
This issue has been resolved by the
determination of Issues 2 and 3 above.
5 What is the opening term deposit
rate?
In both proceedings, for the purposes of order
1(c), the opening interest rate for the term
deposits should be 2.5% with 2.6% then
applied to the first hypothetical term deposit.
6 What are the start and end dates
of the accounts?
Order 1(d) in the Estate Proceeding shall be
varied under the slip rule in the manner
proposed by Mr Quarles, such that the start
date should be 17 November 2014 and the
end date should be 16 March 2022.
7 How is Account 1936 in the
Estate Proceeding to be treated?
The account process in the Estate Proceeding
should proceed on the basis that the funds in
Account 1936 became available in March
2015.
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ATTACHMENT B
Estate Proceeding – Mr Quarles' updated spreadsheet (Ex Q3)
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Jun-Jul 16 301,208 $ 274,194 $ 1.25% 496 $ 27,510 $ 20,118 294,312 61,821 26 232,491 2.00% 26 -470 2.0% 0.50%
Jul-Aug 16 288,224 $ 260,714 $ 1.25% 385 $ 27,895 $ 20,587 281,301 48,810 20 232,491 2.90% 20 -365 2.9% 0.50%
Aug-Sep 16 269,799 $ 241,904 $ 1.25% 343 $ 28,238 $ 20,587 262,491 30,000 13 232,491 2.90% 13 -331 2.9% 0.50%
Sep-Oct 16 316,324 $ 288,086 $ 1.25% 289 $ 28,527 $ 20,587 308,673 76,182 63 232,491 2.90% 63 -226 2.9% 1.00%
Oct-Nov 16 290,032 $ 261,505 $ 1.25% 340 $ 28,867 $ 20,587 282,092 49,601 21 232,491 2.00% 21 -319 2.0% 0.50%
Nov-Dec 16 281,611 $ 252,744 $ 1.25% 306 $ 29,173 $ 20,587 273,331 87,303 36 186,028 2.00% 3,487 3,524 3,218 1,507 31 1,507 2.0% 0.50%
Dec-Jan 17 275,850 $ 246,677 $ 1.25% 301 $ 29,474 $ 20,587 267,264 81,236 34 186,028 2.00% 34 -267 2.0% 0.50%
Jan-Feb 17 262,512 $ 233,038 $ 1.25% 294 $ 29,768 $ 20,587 253,625 67,597 28 186,028 2.00% 28 -266 2.0% 0.50%
Feb-Mar 17 251,688 $ 221,920 $ 1.25% 253 $ 30,021 $ 20,587 242,507 56,479 24 186,028 2.00% 24 -229 16 2.0% 0.50%
Mar-Apr 17 237,799 $ 207,778 $ 1.00% 247 $ 30,268 $ 20,587 228,365 42,337 18 186,028 2.00% 18 -229 2.0% 0.50%
Apr-May 17 225,709 $ 195,441 $ 1.00% 197 $ 30,465 $ 20,587 216,028 30,000 13 186,028 2.00% 13 -185 2.0% 0.50%
May-Jun 17 214,797 $ 184,332 $ 1.00% 192 $ 30,657 $ 20,587 204,919 40,931 17 163,988 2.00% 1,860 1,877 1,685 509 30 509 2.0% 0.50%
Jun-Jul 17 209,246 $ 178,589 $ 1.00% 178 $ 30,835 $ 20,587 199,176 35,188 15 163,988 2.00% 15 -163 2.0% 0.50%
Jul-Aug 17 204,236 $ 173,401 $ 1.00% 179 $ 31,014 $ 20,587 193,988 30,000 13 163,988 2.00% 13 -167 2.0% 0.50%
Aug-Sep 17 378,021 $ 347,007 $ 1.25% 251 $ 31,265 $ 20,587 367,594 203,606 170 163,988 2.45% 170 -81 2.5% 1.00%
Sep-Oct 17 378,333 $ 347,068 $ 1.25% 391 $ 31,656 $ 20,587 367,655 203,667 170 163,988 2.45% 170 -221 30 2.5% 1.00%
Oct-Nov 17 370,894 $ 339,238 $ 1.25% 403 $ 32,059 $ 20,587 359,825 195,837 163 163,988 2.45% 163 -240 2.5% 1.00%
Nov-Dec 17 360,923 $ 328,864 $ 1.25% 381 $ 32,440 $ 20,587 349,451 149,385 124 200,066 2.45% 1,640 1,764 1,383 511 25 511 2.5% 1.00%
Dec-Jan 18 354,912 $ 322,472 $ 1.25% 386 $ 32,826 $ 20,587 343,059 142,993 119 200,066 2.45% 119 -267 2.5% 1.00%
Jan-Feb 18 350,978 $ 318,152 $ 1.25% 379 $ 33,205 $ 20,587 338,739 138,673 116 200,066 2.45% 116 -263 2.5% 1.00%
Feb-Mar 18 257,708 $ 224,503 $ 1.25% 337 $ 33,542 $ 20,587 245,090 45,024 19 200,066 2.45% 19 -318 11 2.5% 0.50%
Mar-Apr 18 249,740 $ 216,198 $ 1.25% 396 $ 33,938 $ 20,587 236,785 36,719 15 200,066 2.40% 15 -381 2.4% 0.50%
Apr-May 18 243,417 $ 209,479 $ 1.00% 223 $ 34,161 $ 20,587 230,066 30,000 13 200,066 2.40% 13 -211 2.4% 0.50%
May-Jun 18 237,720 $ 203,559 $ 1.00% 208 $ 34,369 $ 20,587 224,146 74,829 31 149,317 2.40% 2,451 2,482 2,274 834 30 10 834 2.4% 0.50%
Jun-Jul 18 232,705 $ 198,336 $ 1.00% 197 $ 34,566 $ 20,587 218,923 69,606 29 149,317 2.40% 29 -168 2.4% 0.50%
Jul-Aug 18 243,643 $ 209,077 $ 1.00% 199 $ 34,765 $ 20,587 229,664 80,347 33 149,317 2.40% 33 -166 2.4% 0.50%
Aug-Sep 18 200,000 $ 165,235 $ 1.00% 203 $ 34,968 $ 20,587 185,822 36,505 15 149,317 2.60% 15 -188 2.6% 0.50%
Sep-Oct 18 214,285 $ 179,317 $ 1.00% 176 $ 35,144 $ 0 179,317 30,000 13 149,317 2.60% 13 -164 8 26 12 38 4 10 7 6.0% 0.50%
Oct-Nov 18 283,832 $ 248,688 $ 1.25% 360 $ 35,504 $ 248,688 99,371 62 149,317 1.45% 62 -298 6.0% 0.75%
Nov-Dec 18 214,229 $ 178,725 $ 1.25% 336 $ 35,840 $ 178,725 178,725 112 0 1.50% 1,792 1,904 1,568 585 585 6.0% 0.75%
Dec-Jan 19 194,675 $ 158,835 $ 0.75% 475 $ 36,315 $ 158,835 158,835 99 0 2.00% 99 -376 6.0% 0.75%
Jan-Feb 19 187,168 $ 150,853 $ 0.75% 127 $ 36,442 $ 150,853 150,853 94 0 2.35% 94 -33 6.0% 0.75%
Feb-Mar 19 39,041 $ 2,599 $ 0.50% 74 $ 36,516 $ 2,599 2,599 0 0 2.35% 0 -74 6.0% 0.00%
Mar-Apr 19 82,653 $ 46,137 $ 0.50% 16 $ 36,532 $ 46,137 46,137 19 0 2.35% 19 3 6.0% 0.50%
Apr-May 19 82,677 $ 46,145 $ 0.35% 24 $ 36,556 $ 46,145 46,145 13 0 2.45% 13 -11 6.0% 0.35%
May-Jun 19 79,115 $ 42,559 $ 0.55% 36 $ 36,592 $ 42,559 35,743 15 6,816 2.45% 15 -21 -510 -510 6.0% 0.52%
Jun-Jul 19 77,196 $ 40,604 $ 0.31% 20 $ 36,612 $ 40,604 33,788 9 6,816 2.45% 9 -11 6.0% 0.31%
Jul-Aug 19 73,428 $ 36,816 $ 0.15% 9 $ 36,621 $ 36,816 30,000 4 6,816 2.45% 4 -5 6.0% 0.14%
Aug-Sep 19 83,935 $ 47,314 $ 0.08% 6 $ 36,627 $ 47,314 40,498 4 6,816 2.45% 4 -2 6.0% 0.12%
Sep-Oct 19 75,257 $ 38,630 $ 0.09% 6 $ 36,633 $ 38,630 31,814 2 6,816 1.55% 2 -4 34 77 94 95 31 31 50 6.0% 0.08%
Oct-Nov 19 75,262 $ 38,629 $ 0.07% 5 $ 36,637 $ 38,629 31,813 2 6,816 1.55% 2 -3 6.0% 0.07%
Nov-Dec 19 60,717 $ 24,080 $ 0.06% 3 $ 36,640 $ 24,080 24,080 1 0 1.55% 83 84 81 56 35 56 6.0% 0.05%
Dec-Jan 20 90,720 $ 54,080 $ 0.04% 3 $ 36,644 $ 54,080 54,080 2 0 1.60% 2 -1 6.0% 0.04%
Jan-Feb 20 83,525 $ 46,881 $ 0.05% 4 $ 36,647 $ 46,881 46,881 2 0 1.60% 2 -2 6.0% 0.05%
Feb-Mar 20 68,244 $ 31,597 $ 0.06% 3 $ 36,651 $ 31,597 31,597 1 0 1.60% 1 -2 6.0% 0.05%
Mar-Apr 20 53,422 $ 16,771 $ 0.03% 1 $ 36,652 $ 16,771 16,771 0 0 1.60% 0 -1 6.0% 0.03%
Apr-May 20 44,217 $ 7,565 $ - $ 36,652 $ 7,565 7,565 0 0 1.60% 0 0 6.0% 0.00%
May-Jun 20 37,186 $ 534 $ - $ 36,652 $ 534 534 0 0 1.60% 0 0 -6 -6 6.0% 0.00%
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Jun-Jul 20 20,961 $ 15,691 -$ - $ 36,652 $ -15,691 -15,691 0 0 1.60% 0 0 6.0% 0.00%
Jul-Aug 20 22,047 $ 14,605 -$ - $ 36,652 $ -14,605 -14,605 0 0 1.60% 0 0 6.0% 0.00%
Aug-Sep 20 88,788 $ 52,136 $ - $ 36,652 $ 52,136 52,136 0 0 0.60% 0 0 6.0% 0.00%
Sep-Oct 20 88,788 $ 52,136 $ - $ 36,652 $ 52,136 52,136 0 0 0.60% 0 0 36 82 99 100 33 33 53 6.0% 0.00%
Oct-Nov 20 81,775 $ 45,123 $ - $ 36,652 $ 45,123 45,123 0 0 0.60% 0 0 6.0% 0.00%
Nov-Dec 20 75,863 $ 39,211 $ - $ 36,652 $ 39,211 30,556 0 8,655 0.60% 0 0 0 37 3 6.0% 0.00%
Dec-Jan 21 75,307 $ 38,655 $ - $ 36,652 $ 38,655 30,000 0 8,655 0.60% 0 0 6.0% 0.00%
Jan-Feb 21 75,912 $ 39,260 $ 0.02% 1 $ 36,653 $ 39,260 30,605 1 8,655 0.60% 1 -1 6.0% 0.02%
Feb-Mar 21 94,434 $ 57,781 $ 36,653 $ 57,781 49,126 0 8,655 0.40% 0 0 6.0% 0.00%
Mar-Apr 21 94,434 $ 57,781 $ 36,653 $ 57,781 49,126 0 8,655 0.40% 0 0 6.0% 0.00%
Apr-May 21 93,647 $ 56,994 $ 36,653 $ 56,994 48,339 0 8,655 0.40% 0 0 6.0% 0.00%
May-Jun 21 76,689 $ 40,036 $ 36,653 $ 40,036 40,036 0 0 0.40% 26 26 26 25 25 6.0% 0.00%
Jun-Jul 21 76,689 $ 40,036 $ 36,653 $ 40,036 40,036 0 0 0.40% 0 0 6.0% 0.00%
Jul-Aug 21 58,338 $ 21,685 $ 36,653 $ 21,685 21,685 0 0 0.40% 0 0 6.0% 0.00%
Aug-Sep 21 58,338 $ 21,685 $ 36,653 $ 21,685 21,685 0 0 0.40% 0 0 6.0% 0.00%
Sep-Oct 21 52,579 $ 15,926 $ 36,653 $ 15,926 15,926 0 0 0.40% 0 0 38 87 105 106 35 35 57 6.0% 0.00%
Oct-Nov 21 29,870 $ 6,783 -$ 36,653 $ -6,783 -6,783 0 0 0.40% 0 0 6.0% 0.00%
Nov-Dec 21 29,870 $ 6,783 -$ 36,653 $ -6,783 -6,783 0 0 0.40% 0 0 39 4 6.0% 0.00%
Dec-Jan 22 21,070 $ 15,583 -$ 36,653 $ -15,583 -15,583 0 0 0.40% 0 0 6.0% 0.00%
Jan-Feb 22 17,099 $ 19,554 -$ 36,653 $ -19,554 -19,554 0 0 0.40% 0 0 6.0% 0.00%
Feb-Mar 22 47,699 $ 11,046 $ 36,653 $ 11,046 11,046 0 0 0.15% 0 0 0 26 17 38 47 47 16 16 25 10 1 1 6.0% 0.00%
36,653 Total interest (actual received) Total interest (could have been received) 42,169 5,515 5,541
Total
Annual 6% interest on shortfall to: 16-Mar-23 42 94 114 115 38 38 62 42 4 2 552
Annual 6% interest on shortfall to: 16-Mar-24 44 100 121 122 41 40 65 45 4 2 585
Annual 6% interest on shortfall to: 16-Mar-25 47 106 129 130 43 43 69 48 4 2 620
Annual 6% interest on shortfall to: 16-Mar-26 49 112 136 137 46 46 73 51 5 2 657
Annual 6% interest on shortfall to: 24-Mar-26 1 3 3 3 1 1 2 1 0 0 15
original shortfall 519 1,210 - 1,205 1,490 1,507 509 511 834 585 510 - 56 6 - 25 5,515
interest applied to shortfall 356 - 781 921 924 299 294 464 309 - 25 - 8 4,380
combined loss 875 1,210 - 1,986 2,411 2,431 808 805 1,298 894 510 - 81 6 - 33 9,895
What was earned/actual 36,653
What could have been earned/potential 42,169
Variance/shortfall 5,515
court ordered pre-judgement interest on shortfall 4,380
Total loss 9,895
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