Germinario v Pinkerton (No 2) No. DCCIV-99-28

[2000] SADC 92

Germinario v Pinkerton
[2000] SADC 92

Judge Anderson
Civil

1. Subsequent to reasons for decision being published on 13 July 2000, the Plaintiff sought an order for interest.  In those reasons I had ordered that the Defendant pay to the Plaintiff a lump sum of $75,000.

2. The application for interest was made pursuant to the provisions of s39(1) of the District Court Act 1991 which is in these terms:

   “(1).. Unless good reason is shown to the contrary, the Court will, on the application of a party in whose favour a monetary judgment has been, or is to be, given include in the judgment an award of interest in accordance with this section.”

3. Mr Heywood-Smith of counsel for the Plaintiff submitted that in this matter there was no good cause for an order as sought not being made.

4. Mr Howard of counsel for the Defendant has submitted, relying upon the more expansive words within s30(c) of the Supreme Court Act 1935, that the Plaintiff’s successful claim in this matter was not within “a recognised category of relief where interest is payable” (Outline paragraph 6).

5. It is said that this is so because there is something different about what the Court must do pursuant to the provisions of s10 of the De Facto Relationships Act 1996 where the effect of an adjustment of property as being just and equitable hinges upon the assets of the respective parties at trial and not at some earlier time such as the end of cohabitation or the date of the institution of proceedings.

6. He submitted that consequently there is no comparison with what has here been ordered and a claim for damages or some other form of compensation which is not an order of a prospective type.

7. Whilst it may be so that s39(1) of the District Court Act is an abbreviated form of s30(c) of the Supreme Court Act 1935, in my opinion, it is only necessary to go to the latter as a means to explaining the former if the former is otherwise not capable of plain meaning. Here there is no difficulty with the meaning of the words “in whose favour a monetary judgment .... is to be, given”.  That is the situation here.  Only would an award of interest not follow should good reason to the contrary be shown.

8. I am not assisted by non‑specific references to Family Law practices in relation to certain types of orders.

9. Here the Plaintiff’s contribution had been made to the Defendant’s property by 19 June 1998.  There has not been shown any inexplicable increase in the Defendant’s assets since that time such as to bear upon the broad discretion to award interest.  The Defendant had, and has continued to have, the benefit of the Plaintiff’s contribution since that time and the Plaintiff has otherwise received nothing for that period in respect of her contribution.

10. The accepted practice is to award interest following the event.  I agree with Mr Heywood‑Smith that were there to develop a jurisdiction in which interest was habitually not awarded the case management strategies to facilitate the prompt and efficient disposal of the Courts’ business as ordained by the Rules of Court would likely be under grave threat.

11. In my opinion, there is no reason shown why the Plaintiff should not have an award of interest.

12. Mr Howard suggested that there has been untoward delay.  The matter has come to conclusion about 18 months from institution.  This is not a delay to be penalised as he suggests.  I refer to the remarks of the former Chief Justice in Metro Meat Ltd v Werlick as set out at para 544 of Duke Group Ltd v Pilmer (1999) 73 SASR 63 on this topic. King CJ there said:

    “I agree that delay on the part of a plaintiff is a factor to be considered by the judge in exercising his discretion as to interest, .... I consider, however, that it should not be given undue importance for two reasons.  The first is that a defendant has remedies at his disposal for unwarranted delay on the part of a plaintiff.  If he neglects to pursue his remedies, the plaintiff’s delay becomes a less important consideration.... The second reason is purely practical.  From the time of the introduction of the statutory interest provisions, the Courts have inclined strongly against allowing interest to become a new issue in litigation and a source of costly disputation.  The statutes gave to the judges a broad discretion to be exercised on common sense lines.  It would be totally contrary to the spirit of the legislation to allow the justification for delay to become an issue in the proceedings.  I consider that delay should therefore be used as a discretionary basis for reducing the interest otherwise allowable only where the delay is considerable and plainly unjustifiable.”

13. No good reason has been shown to depart from the rates of interest as set out in the Third Schedule.  I fix interest at $7,000 as a lump sum.