AFF Properties Pty Ltd v Robovich
[2023] NSWPIC 41
•3 February 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | AFF Properties Pty Ltd v Robovich & Ors [2023] NSWPIC 41 |
| APPLICANT: | AFF Properties Pty Ltd |
| FIRST RESPONDENT: | Jennifer Leslie Robovich |
| SECOND RESPONDENT: | Solomon Robovich |
| THIRD RESPONDENT: | Sabina Mead (née Robovich) |
| SENIOR Member: | Kerry Haddock |
| DATE OF DECISION: | 3 February 2023 |
CATCHWORDS: | WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; consideration of Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Shanika Cooper v G & W Mudge Concreting Pty Limited & others, Zona Coatings Pty Limited v Zrinski & Ors, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors and BFG v Polyfoam (Sydney) Pty Ltd & Ors; Held – award of interest from the date the claim was “duly made”, being when each respondent’s Reply was served, at a rate 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum. |
| determinations made: | 1. The applicant is to pay to the first respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $667,360 as follows: (a) from 9 August 2022 to 6 September 2022 at the rate of 3.85% per annum; (b) from 7 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (c) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (d) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (e) from 7 December 2022 to 31 January 2023 at 5.10% per annum. 2. The applicant is to pay to the second respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $83,420 as follows: (a) from 16 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (b) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (c) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (d) from 7 December 2022 to 31 January 2023 at the rate of 5.10% per annum. 3. The applicant is to pay to the third respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $83,420 as follows: (a) from 19 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (b) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (c) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (d) from 7 December 2022 to 31 January 2023 at the rate of 5.10% per annum. |
STATEMENT OF REASONS
BACKGROUND
Hussein Sam Robovich (the worker) died on 13 March 2021 as a result of injury sustained on 8 August 2011 arising out of or in the course of his employment with the applicant, AFF Properties Pty Ltd (AFF).
The first respondent, Jennifer Robovich, is the worker’s widow. The second and third respondents, Solomon Robovich and Sabina Mead, are, respectively, the son and daughter of the worker.
In order to avoid confusion, I will refer to some members of the family by their given names, while meaning no disrespect.
By letter dated 8 February 2022, solicitors acting for Jennifer wrote to the applicant’s workers compensation insurer, AAI Ltd t/as GIO (GIO), making a claim for the lump sum death benefit, pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act); and for funeral expenses pursuant to s 26 of the 1987 Act.
The solicitors served a medical report in support of the first respondent’s claim. They gave notice that she was making a claim for interest on the lump sum, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
By letter dated 14 April 2022, the solicitors for the applicant confirmed their previous advice to the first respondent’s solicitors that GIO had determined to accept the claim. Referring to a letter dated 17 February 2022, which is not in evidence, they requested particulars of the claim.
By letter dated 31 May 2022, the solicitors for the first respondent advised the applicant’s solicitors that their client had instructed them that she was the worker’s only dependant. They also advised that the worker had four children, who included the second and third respondents. They had written to Solomon, Ms Mead and Ms Natasha Robovich (Natasha), the worker’s daughter of his first marriage, to advise that they may be potential dependants. The first respondent had no knowledge of the whereabouts of Mr Ibrahim Robovich (Ibrahim), the worker’s son of his first marriage, and no contact details for him.
AFF lodged an Application in Respect of Death of Worker (the Application) on 12 July 2022, to allow for findings and orders as to apportionment of the lump sum to be made.
The first respondent lodged her Reply on 5 August 2022.
On 10 August 2022, delegate of the President, Parnel McAdam, made directions regarding possible claims by the second respondent, the third respondent, and Natasha.
On 24 August 2022, delegate McAdam directed that Solomon and Ms Mead be joined to the proceedings as the second and third respondents, respectively. He also made orders for service of the amended Application and Replies.
The second respondent lodged his Reply on 15 September 2022.
The third respondent lodged her Reply on 16 September 2022.
ISSUE TO BE DETERMINED
The following issue remains in dispute:
(a) whether interest is to be paid on the death benefit and if so, the rate/s of interest and the period/s over which it is to be awarded.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for preliminary conference before me on 10 November 2022.
Mr Harris appeared for the applicant. Mr Grady appeared for the first respondent; Ms Burns appeared for the second respondent; and Mr Groves appeared for the third respondent.
Ms Morgan of GIO and Ms Dean of iCare also attended.I was advised that the parties had agreed on apportionment of the lump sum. The applicant’s solicitor advised that he had been in contact with Natasha and was able to provide evidence that he believed would be sufficient to determine that she was not dependent on the worker. I was also informed that there were claims for interest on the lump sum, in respect of which there was no agreement.
As the first respondent resides in Queensland, and the second respondent in Victoria, the question arose as to whether the matter was federally impacted. In accordance with the direction of the Division Head, the matter was remitted to him. The applicant’s solicitor advised that, should it be determined that the Personal Injury Commission (the Commission) had jurisdiction to determine the matter, the evidence in respect of any potential claim by
Natasha would be filed.At the direction of the Division Head, an amended Direction was issued on
23 November 2022. The parties were directed to lodge and serve written submissions on the issue of whether the matter is federally impacted.The parties lodged their submissions in accordance with the timetable.
I determined the issue of whether the matter was federally impacted and made orders regarding the filing of evidence with respect to any potential claim by Natasha, and submissions on the claim for interest, on 19 December 2022. I gave the parties liberty to request a further preliminary conference so that findings and orders regarding apportionment of the lump sum could be made.
The matter was listed for further preliminary conference on 19 January 2023. Mr Harris appeared for the applicant; Mr Grady appeared for the first respondent; Ms Burns appeared for the second respondent; and Mr Fogarty appeared for the third respondent.
Mr Harris advised that he had telephoned Natasha on the preceding Thursday and left a message for her. He had also sent her a text message, advising her that the matter was listed for preliminary conference on 19 January 2023; that the matter was likely to be finalised; and should she wish to make a claim, she should contact him immediately. He had received no response.
In view of the evidence of the respondents, the statement by Mr Harris dated
21 December 2022, and his updated advice regarding his further attempts to contact Natasha, I am satisfied that she was on notice of the proceedings, that she has been advised that she could, if she wished, make a claim on the lump sum death benefit, and of the availability of legal advice at no cost to her. She has not given any indication that she wishes to make a claim.Findings and orders were therefore made in respect of apportionment of the lump sum.
I was advised that the second respondent had not filed submissions on the issue of interest but agreed with and adopted the submissions of the third respondent. The first respondent has since advised that it adopts the submissions of the third respondent on the issue of interest.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments;
(b) Reply by first respondent and attachments;
(c) Reply by second respondent and attachments;
(d) Reply by third respondent and attachments, and
(e) statement of Stephen Charles Harris dated 21 December 2022.
FINDINGS AND REASONS
Evidence of the first respondent, Jennifer Leslie Robovich
Jennifer’s statement is dated 4 August 2022. She and the worker were married for 46 years.
She and the worker had two children, who are the second and third respondents. The worker had two children by a previous marriage, Ibrahim Robovich, and Natasha Robovich, who are now both aged in their 50’s.
Ibrahim has long been estranged from the family. She has not seen or spoken to him since the early 80’s, and nor, to the best of her knowledge, had the worker. Ibrahim’s whereabouts have been unknown to the rest of the family since 1994.
She has annexed a copy of the worker’s will, dated 15 February 2012, which expressly excluded Ibrahim from sharing in his estate.
Prior to the worker’s death, they were both employed full-time. The worker contributed towards half of all expenses. He performed half the household chores, both inside and outside the home. When they travelled long distances by car, he performed half the driving. After his injury, the worker received an old age pension, and she received a carer’s pension. This formed their total income. She depended on his income for payment of bills and the purchase of necessities.
They travelled regularly, both before and after the worker’s injury. He also provided immense and immeasurable emotional support and comfort.
Evidence of the second respondent, Solomon Robovich
Solomon’s statement is dated 14 September 2022.
He is 46 years old and resides with his partner and infant daughter. He is self-employed, performing boat repairs and maintenance.
As adults, he and the third respondent received support from their parents in their business ventures, both financially, and with guidance and advice.
He and the worker had a very close relationship. Over the years, they had lived together in Europe, Bosnia, New Zealand, Queensland, New South Wales, Melbourne, Perth, on a cotton farm, and on a boat.
He does not have any contact with Ibrahim or Natasha. He is not interested in maintaining contact or a relationship with them, and neither was the worker. He believes the worker had some sporadic contact with Natasha, but none with Ibrahim. That had been the case for many years.
A few years after the worker had a stroke, he and Jennifer moved to Melbourne with him for a couple of years. He helped look after his father and both his parents helped him with his business. The worker helped him coach a kids’ soccer team.
One of the worker’s great passions was horses. They part-owned horses together at times.
They also loved travelling together, especially to Bosnia. They once took a superyacht from Italy to Croatia. When he was 16, he and the worker went to Malaysia. When he was an adult, his father travelled to meet him in Croatia, France, Thailand, Singapore, Italy, or wherever he was working on a boat.
The worker helped him with the purchase of cars, apartments, funds for businesses, and advice.
After the worker’s stroke, he continued to give his opinion and advice, which he valued very highly. He relied on the worker for emotional support and general life advice right up until he could no longer speak. Even then, he used gestures to express his thoughts.
Evidence of the third respondent, Sabina Mead (née Robovich)
Ms Mead’s statement is dated 2 September 2022.
She left home at 16, in year 10. She and the second respondent went into rented accommodation in Bendigo. Shortly after, her parents moved to Perth. They gave her a lot of their furniture and furnishings.
She moved to the Gold Coast in 1996. Her mother and father were travelling around Australia in a van. They came to visit on a couple of occasions. They “hung out”, took road trips, and spent as much time together as possible.
Whenever the worker visited, he took her out to dinner, and often gave her money to help her get by – from $50 to hundreds in cash. He would shout lunches and coffee, and just support her while he was there. He was a keen gambler. If he had a big win, he would often give her some of his winnings, shout a special meal.
When she lived on the Gold Coast, her father and mother bought her a car, to assist her to get to TAFE and work. She had never owned a car and could not have afforded one herself.
She worked on superyachts, commencing in about 1999, and including in Antibes. Her parents often visited her in France. Her father provided her with advice and encouragement. He invariably took her to dinner, gave her cash to tide her over, and paid for food and fuel. She was earning reasonable money, “but that was just my father’s way”.
In about 2005, she travelled on a yacht around South East Asia for about 10 months, before settling in New Zealand to complete her captain’s ticket. Her parents went to New Zealand shortly after and stayed.
In 2006, she started a business with her partner in Auckland. Her parents lived with her and assisted them to establish the business. Her father assisted her daily with cleaning and maintenance on yachts. He helped her get the business up and running.
Her parents allowed her to use a room in the property they rented at Milford as her office, and she worked out of that office until they moved back to Australia.
While her father was in New Zealand, he helped with living expenses, rent, and occasional bills. He was generous. He was also an integral part of the business team. He did a lot of the cleaning. He also helped establish the identity of the business and worked on its reputation. She also looked to him for advice.
Her parents were there when her first child was born in 2009. She still worked from her home office, so the support of her father to help with the baby, walk the dog, and in general, “having extra hands around” was hugely helpful.
Her other children were born in 2011 and 2015, respectively. Between the birth of the first and second children, her parents came to New Zealand. Her father looked after the house, the business, and their animals while they went on holiday.
After her father suffered the stroke, he was severely restricted. He and her mother went to New Zealand at least annually and stayed with her. They visited her parents in Australia several times. Her father came alone once, with assistance on the plane, to stay with her for a period. His physical, mental, and verbal ability were severely limited. He also developed dementia.
She anticipates that, but for his injury, her father would have continued to provide assistance, support, advice and encouragement.
Her marriage has recently broken down. She is going through separation and divorce, attempting to continue running and saving her business, while bringing up three kids nearly full time in a foreign country. She misses the support her father would have given her.
Evidence of Stephen Charles Harris
Mr Harris is the solicitor for the applicant. He has made a statement dated
21 December 2022, regarding his contact with Natasha.Mr Harris was provided by the third respondent with a mobile telephone number for Natasha. He telephoned that number on several occasions, and left messages requesting that she telephone him. No response was received.
On 4 November 2022, Mr Harris sent a text message to that number. He advised Natasha of the proceedings and that there was a telephone conference on 10 November 2022. He asked her to telephone him.
On 4 November 2022, Mr Harris received a text message from that number. The message advised that “I have been going through some things lately including the floods in Shepparton, I am not able to deal with this at the moment”. It was signed Natasha Robovich.
On 4 November 2022, Mr Harris sent Natasha a text message. He expressed his sympathy but advised that the Commission may deal with the matter in her absence. He advised that, if there was a basis for her to claim to be entitled to a share of the compensation, it was important that she act, and obtain independent legal advice.
Mr Harris offered to recommend a suitable New South Wales solicitor and advised Natasha that she would not be liable for legal fees. He concluded by advising that, should he not hear from her, it may be assumed that she did not wish to make a claim. He did not receive a response.
At 7:02 am on 10 November 2022, Mr Harris sent a text message to the same telephone number. He advised that the teleconference would take place at 10:30 am that day. He advised that, should he not hear from Natasha, he would be obliged to submit that it should be assumed she did not allege to have been financially dependent on the worker, and she made no claim.
Mr Harris advised Natasha that, absent a response from her, it was possible the Commission would determine the claim in her absence and apportion the lump sum between the respondents. He asked her to advise him urgently if she wished to make a claim, obtain legal advice, and he would so advise the Commission. He provided his contact number. He did not receive a response.
On 10 November 2022, Mr Harris sent a text message to the same number. He advised that the proceedings had been adjourned, and he would advise of any relevant developments. He asked that, should Natasha wish him to cease communicating with her, she confirm that. He did not receive a response.
On 21 December 2022, Mr Harris telephoned the same number, and left a message requesting a call to his mobile telephone number.
On the same day, Mr Harris sent a text message to the same number. He advised that the teleconference that day was adjourned, and it was expected that a new teleconference would take place in January or February 2023.
Mr Harris advised Natasha that it was possible the matter would be finalised at the next teleconference, and she would not then be able to make a claim. If she did wish to make a claim, she should seek legal advice. He again advised that this was available at no cost and provided contact details of the Independent Review Officer.
At the time of making the statement, Mr Harris stated he would advise the Commission if he received a response to his most recent telephone message and text.
SUBMISSIONS
The parties have provided written submissions, so I will refer to them only briefly.
First respondent
The first respondent adopts the submissions of the third respondent.
Second respondent
The second respondent agrees with and accepts the submissions of the third respondent.
Third respondent
The third respondent submitted that each respondent seeks payment of interest on the lump sum death benefit.
The third respondent submitted that the claim was duly made on 8 February 2022, by letter from the solicitors for the first respondent to GIO. Particulars were requested by the solicitors for the applicant on 14 April 2022 and provided by letter dated 31 May 2022.
The third respondent then submitted that the claim was duly made, and all particulars provided, by 31 May 2022, and interest should run from 31 May 2022 on the apportioned sums, until the date the payments are made.
The third respondent anticipated that the applicant may argue that the claim was not duly made until the respondents filed their Replies. It referred to the decision in Kaur v Thales Underwater Systems Pty Limited [2011] NSWWCCPD 6 (Kaur).
The third respondent submitted that in Shanika Cooper v G & W Mudge Concreting Pty Limited & others (WCC6411/18) (Cooper), Arbitrator Wynyard, as he then was, referred to Kaur, and formed the view that “duly made” refers to a date when a claim is fully particularised.
Member Isaksen agreed with this approach in Zona Coatings Pty Limited v Zrinski& Ors [2022] NSWPIC 547 (Zona Coatings). He observed that the same approach to the phrase “duly made” had been adopted in Levell [sic: Lavelle] v David Paul Browne and others (WCC533/19) (Lavelle) and Kathryn Kratz [sic: Kathryn Ann Kratz] as Executrix of the Estate of the Late Owen Beddall v Qantas Airways Limited [2020] NSWWCC 36 (Kratz).
The third respondent submitted that, in accordance with those decisions, the claim by the respondents was duly made by 31 May 2022, and interest on the amounts apportioned to them should run from 31 May 2022 to the date of payment.
In answer to any submission by the applicant that compensation [sic] is not payable during any period where the proceedings were adjourned on the application of the claimant, the third respondent submitted that the adjournment was not at the request of the parties but was required by the federal jurisdiction issue. It should not impact the payment of interest.
The third respondent, in answer to any submission by the applicant that no interest should be awarded because the claimants have not been financially disadvantaged by delay in the payment of the lump sum death benefit, relied on the decision of Moffitt P in Bennet v Jones & Anor [1977] 2 NSWLR.
As regards the rate of interest, the third respondent referred to the decision in Zona Coatings, in which Member Isaksen applied the rate of 2% above the Reserve Bank of Australia (RBA) cash rate. She submitted it is an appropriate exercise of the Commission’s discretion to award interest for the period from 31 May 2022 to the date of payment, at the RBA cash rate plus 2% during the relevant period.
Applicant
The applicant submitted that interest should be ordered on the lump sum at a rate of 2% above the RBA cash rate as follows:
(a) to the first respondent from 9 August 2020 [sic: 2022] (the date on which her Reply was served on the applicant) to the date of the Certificate of Determination (COD);
(b) to the second respondent from 16 September 2022 (the date on which his Reply was served on the applicant) to the date of the COD, and
(c) to the third respondent from 19 September 2022 (the date on which her Reply was served on the applicant) to the date of the COD.
The applicant submitted that the Commission’s power to award interest is discretionary, referring to Haidary v Wandella Pet Foods Pty Ltd [2005] NSWWCCPD 9 (Haidary); Canham v Kenna Investments Pty Ltd [2006] NSWWCCPD 202; and Kaur.
With respect to the period/s that should be the subject of an order for interest, the applicant submitted that the suggestion that interest should be ordered to “the date that the lump sum is paid” ignores that, in accordance with s 109 (1) of the 1998 Act, interest can only be ordered up to the date “before the sum is payable”, which is the date of the COD. Any entitlement to interest between the date of the COD and the date of payment is governed by s 110 of the 1998 Act.
The applicant submitted that the words “duly made” are significant and require more than simply making a claim. It is well established that in claims arising out of the death of a worker, a claim by a dependant is not “duly made” until full particulars of the alleged dependency have been provided. The respondents’ submissions are inconsistent with the clear statement of opinion by President Keating in Kaur.
The applicant also referred to Cooper, Lavelle, and numerous other cases. It submitted that the submission that interest should be ordered from a date prior to the date on which each Reply was served is inconsistent with numerous decisions by the Commission, and with Kaur, which is binding.
The applicant submitted that the claim by each claimant was not “duly made” until the Reply on behalf of each was served.
The applicant accordingly submitted that interest should be ordered as follows:
(a) On the lump sum ordered to be paid to the first respondent:
(i)at 3.35% [sic: 3.85%] from 9 August 2022 to 6 September 2022;
(ii)at 4.35% from 7 September 2022 to 4 October 2022;
(iii)at 4.60% from 5 October 2022 to 1 November 2022;
(iv)at 4.85% from 2 November 2022 to 6 December 2022, and
(v)at 5.10% from 7 December 2022 to the date of the issue of the COD.
(b) On the lump sum ordered to be paid to the second respondent:
(i)at 4.35% from 16 September 2022 to 4 October 2022;
(ii)at 4.60% from 5 October 2022 to 1 November 2022;
(iii)at 4.85% from 2 November 2022 to 6 December 2022, and
(iv)at 5.10% from 7 December 2022 to the date of the issue of the COD.
(c) On the lump sum ordered to be paid to the third respondent:
(i)at 4.35% from 19 September 2022 to 4 October 2022;
(ii)at 4.60% from 5 October 2022 to 1 November 2022;
(iii)at 4.85% from 2 November 2022 to 6 December 2022, and
(iv)at 5.10% from 7 December 2022 to the date of the issue of the COD.
SUMMARY
Section 109 of the 1998 Act provides:
“(1) In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2) Interest cannot be ordered under this section—
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3) This section does not - -
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise”
The power to award interest is discretionary and may apply to some or all of the compensation payable, for the entire period, from the date of the claim to the date of the order, or for a lesser period. The rate of interest is also a discretionary matter. However, while the discretion is wide, regard must be held to the facts of the case.
In Haidary, Deputy President Fleming said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors (1990) 6 NSWCCR; Healey v McPherson Binding Pty Ltd (1989) 5 NSWCCR 139).”
Section 109(2)(b) of the 1998 Act provides that interest cannot be ordered for any period before a claim was duly made.
President Keating said in Kaur:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for compensation on behalf of the appellants was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
“Duly made” has been held to mean “fully particularised”, in Kratz, Cooper, and Lavelle, as well as in numerous other cases.
I do not accept the respondents’ submissions that the claim was duly made on either
8 February 2022 or 31 May 2022. They have submitted that both dates are the relevant dates but appear to have settled on 31 May 2022.The letter from the first respondent’s solicitors to the applicant’s solicitors dated 31 May 2022 did no more than advise them of possible other dependants, while at the same time asserting that Jennifer had instructed them that she was the only dependant. It did not provide any evidence of her dependency, or that of any other potential claimant.
As the applicant submitted, any submission that the claim was duly made on 31 May 2022 is inconsistent with the clear Presidential authority of Kaur. The respondents’ claims were not fully particularised until they served on the applicant evidence in respect of their claims to have been dependent on the worker. That did not occur until they served their respective Replies.
I accept the applicant’s submission that the claims were duly made by the first respondent on 9 August 2022; by the second respondent on 16 September 2022; and by the third respondent on 19 September 2022. No award of interest will be made before those respective dates.
As regards the respondents’ submission that interest is payable to the date that the lump sum is paid, the applicant correctly submitted that, in accordance with s 109 (1) of the 1998 Act, interest can only be ordered for the period “before the sum is payable”, which is the date of the issue of this COD.
Both the respondents and the applicant submitted that an appropriate rate at which to award interest is a rate that is 2% above the RBA cash rate for the relevant period. That approach has recently been taken in several matters, including Zona Coatings; Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors [2022] NSWPIC 590; and BFG v Polyfoam (Sydney) Pty Ltd & Ors [2022] NSWPIC 724.
I accept the parties’ submissions and determine that the appropriate rate of interest is the rate that is 2% above the relevant RBA cash rate, payable from the date each respondent’s claim was duly made, to the date of this COD. The award of interest is to be apportioned in accordance with the apportionment of the lump sum.
The orders are as set out in the COD.
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