Hamdan v Widodo [No 2]
[2010] WASC 6 (S)
•13 JANUARY 2010
HAMDAN -v- WIDODO [No 2] [2010] WASC 6 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 6 (S) | |
| Case No: | CIV:1813/2004 | 5 JUNE 2009, 13 JANUARY 2010 | |
| Coram: | JOHNSON J | 13/01/10 | |
| 13/01/10 | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Interest on costs to run from date of judgment | ||
| B | |||
| PDF Version |
| Parties: | JAMAL HAMDAN SRI WAHJUNI WIDODO |
Catchwords: | Interest on legal costs Whether interest was from date of judgment or taxation of costs on other date |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 8 |
Case References: | Erven Warnink BV v Townend & Sons (Hull) Ltd (No 2) [1982] 3 All ER 312 Hunt v R M Douglas (Roofing) Ltd [1990] IAC 398 K v K (divorce costs) [1977] Fam 39 Newton v Grand Junction Railway Co (1846) 153 ER 1133 State Planning Commission v Della Vedova (1992) 7 WAR 81 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
DECISION : 13 JANUARY 2010 FILE NO/S : CIV 1813 of 2004 BETWEEN : JAMAL HAMDAN
- Plaintiff
AND
SRI WAHJUNI WIDODO
Defendant
Catchwords:
Interest on legal costs - Whether interest was from date of judgment or taxation of costs on other date
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 8
Result:
Interest on costs to run from date of judgment
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr R J Nash
Defendant : Mr J L H Formby
Solicitors:
Plaintiff : Butcher Paull & Calder
Defendant : Formbys
Case(s) referred to in judgment(s):
Erven Warnink BV v Townend & Sons (Hull) Ltd (No 2) [1982] 3 All ER 312
Hunt v R M Douglas (Roofing) Ltd [1990] IAC 398
K v K (divorce costs) [1977] Fam 39
Newton v Grand Junction Railway Co (1846) 153 ER 1133
State Planning Commission v Della Vedova (1992) 7 WAR 81
(Page 3)
1 JOHNSON J: The plaintiff in respect to interest on legal costs made a submission that interest on taxed costs follows the event due to the provisions of s 8 of the Civil Judgments Enforcement Act.
2 The Civil Judgment Enforcement Act 2004 provides.
8. Interest on judgment sums
(1) Interest is to be paid on the unpaid amount of a judgment sum form the date of the judgment until the date on which the judgment sum is paid -
(a) at the rate prescribed by the regulations; or
(b) at the same rate set by the court in judgment or by an order made after the judgment is given.
Every judgment debt shall carry interest at such rate for every $100.00 by the year as the treasurer from time to time of entering up the judgment until the judgment is satisfied, and the interest may be levied under a writ of warrant of execution on the judgment.
4 The commentary in Seamen's Civil Procedure still refers to s 142 of the Supreme Court Act and is as follows:
Interest on taxed costs pursuant to Section 142 of the Supreme Court Act 1935 runs from the date of judgment and not from the date of the certificate of taxation: Hunt v R M Douglas (Roofing) Ltd [1990] IAC 398 at 416; [1988] 3 ALL ER 823 at 833: State Planning Commission v Della Vedova (1992) 7 WAR 81 at 86.
5 The decisions in State Planning Commission v Della Vedova (1992) 7 WAR 81, 86 and in Hunt v R M Douglas (Roofing) Ltd [1990] IAC 398, 416 are cited as authority for that proposition.
6 In State Planning Commission v Della Vedova (86)the court held that interest in the Supreme Court runs from the date of judgment.
If interest is not payable on costs between the judgment and the completion of taxation, there is an incentive to delay disbursements and taxation: Hunt v R M Douglas (Roofing) Ltd [1990] 1 ACC 398 at 416; [1988] 3 ALL ER 823 per Lord Ackner at 833.
(Page 4)
7 The decision in Hunt v R M Douglas (Roofing) Ltd is also to the effect that the right to interest on costs depends on the statutory enactment and, as a consequence, a litigant who has been awarded costs is entitled to interest on those costs from the date of judgment rather than the date the taxation of costs is completed. The decision is of the House of Lords and deals with the impact of relevant statutory changes on the common law position that interest on costs runs from the date of judgment.
8 However, in the course of the decision of Lord Ackner, with whom the other members of the court agreed, a number of rationalisations for the competing positions were discussed: (826). One such rationalisation is that, if interests does not run from the date of judgment, that interest is 'fructifying in the wrong pocket': Newton v Grand Junction Railway Co (1846) 153 ER 1133, 1134. For the contrary position it was said that when the sum is unascertained, the debtor cannot be expected to pay it until it is quantified and cannot make a tender until he knows how much it is and cannot be said to be wrongfully withholding the money: Denning LJ in K v K (divorce costs) [1977] Fam 39, 48 - 49. It has also been said that a client commonly pays costs on account well before those costs are taxed and, in those circumstances, it is difficult to see why he should be denied interest as from the judgment or later payment on the amounts from time to time paid (although the latter is not an option in this case): Erven Warnink BV v Townend & Sons (Hull) Ltd (No 2) [1982] 3 All ER 312, 319 - 320.
9 In Hunt v R M Douglas (Roofing) Ltd the court concluded that a satisfactory result cannot be achieved in every case but the balance of justice favours the incipitur rule which is the rule that interest runs from judgment. The basis of that conclusion is that it is the unsuccessful party to the litigation who has caused costs unnecessarily to be incurred, and since interest is not awarded on costs incurred and paid by the successful party before judgment, why should the successful party suffer the added loss of interest on costs incurred and paid after judgment but before the taxing master gives his certificate: (832). I believe there is considerable substance to that rationale.
10 Counsel for the defendant conceded that interest would be payable from the date the costs order was signed. However, the defendant submitted that it is inappropriate for the costs to run from the date of the judgment because of the delay between the judgment and the decision on appeal.
(Page 5)
11 The defendant submitted that, until the amount of costs was taxed, the amount had not crystallised and interest should not be applied prior to that point. However, the plaintiff's response was that although the amount was crystallised only recently, the costs were in fact incurred some time ago and have been assessed at the time they were incurred.
12 The defendant further submitted that the delay in the taxation of the costs was entirely the doing of the plaintiff. The defendant contended that, in these circumstances, an appropriate award of interest is three months in each case as that was said to be an adequate time to allow the plaintiff to have his costs taxed otherwise the result is to reward the plaintiff for his dilatoriness.
13 Based on the authorities to which I have referred and on the terms of s 8 of the Civil Judgments Enforcement Act,I consider that the proper order is to order interest on costs to run from the date of judgment.
14 For the same reasons identified by the House of Lords in Hunt v R M Douglas (Roofing) Ltd (832) I am not prepared to exercise my discretion to the contrary in the circumstances referred to by the defendant.
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