Chaffey and Squires v Charles Martin Constructions Pty Ltd

[1989] TASSC 12

Serial No 5/1989
List "A"

CITATION:    Chaffey and Squires v Charles Martin Constructions Pty Ltd [1989] TASSC 12; A5/1989

PARTIES:  CHAFFEY, S G
  SQUIRES, J
  V
  CHARLES MARTIN CONSTRUCTIONS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1048/1988
DELIVERED ON:  17 February 1989
JUDGMENT OF:  Crawford J

Judgment Number:  A5/1989
Number of paragraphs:  6

Serial No 5/1989
List "A"
File No 1048/1988

S G CHAFFEY & R J SQUIRES  v CHARLES MARTIN CONSTRUCTIONS PTY LTD

REASONS FOR JUDGMENT  CRAWFORD J

17 February 1989

1. This application for summary judgment also involves the entitlement of a plaintiff to interest on a debt or sum certain under s34(1)(b) of the Supreme Court Civil Procedure Act 1932. The application for summary judgment was not opposed.

1. The Writ dated 16 September 1988 claimed $45,091.37 for work and labour done and goods and materials supplied by the plaintiffs to the defendant. It did not mention a claim for interest. An Appearance was entered by the defendant on 26 September 1988.

1. The Statement of Claim dated 30 September 1988 claimed $40,953.18 for work and labour done and goods and materials supplied but there was an error in addition and the correct total of the items in–paragraph 18 thereof is $40,593.18. I note that O22, r2 permits the Statement of Claim to alter the amount claimed, without amendment of the Writ. In addition the Statement of Claim sought interest on the amount claimed at 10 per cent "pursuant to s34 of the Supreme Court Civil Procedure Act until payment". The facts relied on for this claim were not pleaded.

1. The defendant delivered a Defence which admitted two formal paragraphs in the Statement of Claim and then simply "not admitted" the allegations contained in eighteen paragraphs of the Statement of Claim, in breach of O31, r19(2) which requires in the case of a refusal to admit a fact alleged in a pleading, that the fact not admitted must be specifically stated.

1. The application for summary judgment was supported by an affidavit of the second named plaintiff which verified the facts on which the claim was based (except the claim for interest) and stated that he believed that the defendant has no defence to the plaintiffs‘ claim (see O15, r2(1). The affidavit repeated the arithmetical error made in the Statement of Claim by stating that the outstanding balance of the debt was $40,953.18. The plaintiffs’ solicitor said that his clients only seek ,judgment for $40,593.18. I am satisfied that the plaintiff is entitled to judgment for this amount.

1. However, the plaintiffs‘ are not entitled to interest on that sum for the following reasons:—

1Order 15 establishes no entitlement to interest when summary judgment is obtained. The position may be contrasted with the express entitlement to interest at 10 per centum per annum in a judgment in default of appearance on a claim for a liquidated demand (O14, r3) and in a judgment in default of defence on a claim for a debt or liquidated demand (O30, r2). There is no reason, however, why interest should not be allowed on the hearing of an application for summary judgment if the case is shown to be one properly within s.34(1) (see Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 in which it was so held where the legislation provided that interest could be allowed by "the Judge at the hearing".)

2 Section 34(1) of the Supreme Court Civil Procedure Act 1932 is in the following terms:—

"34 — (1)       Upon all debts or sums certain recovered in any action, or on the trial of any issue of fact, the jury, or (in cases where there is no jury) the judge, or (in the case of an assessment of damages) the jury, judge, officer of the court, Judge of an inferior court of civil jurisdiction, or referee making the assessment, may allow interest to the party recovering such debt or sum at the prescribed rate—

(a)from the time when such debt or sum was payable if payable by virtue of some written instrument and at a date or time certain; or

(b)if payable otherwise, then from the time when demand of payment was made in writing, giving notice to the debtor that interest would be claimed from the date of such demand or any later date."

The plaintiffs' claim for interest is based on paragraph (b) but it was not pleaded nor was there any evidence establishing when the demand for payment of interest was made in writing nor the date from which interest would be claimed. The affidavit of the second named plaintiff did not verify the claim for interest.

3A claim for interest in a Statement of Claim would seem not to be a sufficient demand in writing; Genvrain v Beck (1925) 41 TLR 629. Nor a claim in the Writ; Rhymney Railway Company v Rhymney Iron Company Limited (1890) 25 QBD 146. It would appear from those authorities that under s34(1)(b) the demand must be made prior to the action being commenced.