Idemitsu Queensland Pty Ltd v Agipcoal Australia Pty Ltd
[1993] QCA 565
•21/12/1993
IN THE COURT OF APPEAL
[1993] QCA 565
SUPREME COURT OF OUEENSLAND
Brisbane
Before The President
Mr Justice Pincus Mr Justice Davies
[Idemitsu Queensland & Ors. v. Agipcoal Australia & ors.]
BETWEEN:
IDEMITSU OUEENSLAND PTY LTD & ORS
Appellants
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
Appeal No. 39 of 1992
BETWEEN: IDEMITSU OUEENSLAND PTY LTD & ORS
Appellants
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 43 of 1992
BETWEEN: LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD
Appellant
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 44 of 1992
BETWEEN: LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD
Appellant
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
REASONS FOR JUDGMENT - THE PRESIDENT
Judgment delivered 24/03/1993
1. On 27 March, 1992, the appellants, Idemitsu Queensland Pty. Ltd, Idemitsu Kosan Co. Ltd. and Bligh Coal Ltd. (collectively referred to as "Idemitsu"), satisfied judgments given against them in the Trial Division on 21 February, 1992,in actions Nos. 1139 and 1392 of 1990 by payment of $29,500,000.00 to each of the respondents, Agipcoal Australia Pty. Ltd. ("Agipcoal") and Pacific Coal Pty. Ltd. ("Pacific").
2. Each amount paid was made up of $25,000,000.00 damages and $4,500,000.00 interest calculated at the rate of 12% per annum.
3. On 24 March, 1993, this Court allowed in part appeals by Idemitsu (Nos. 38 and 39 of 1992) and appeals by Lucky-Goldstar International (Aust) Pty. Ltd. (Nos. 43 and 44 of 1992). In Appeals Nos. 38 and 39 of 1992, the Court made the orders set out below, but gave leave to the parties to make further submissions with respect to the form of the orders and the amount to be repaid to Idemitsu by each of Agipcoal and Pacific.
" ... 2. JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $29.5m SET ASIDE AND IN LIEU JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $15,720,000.
...
6. THAT THE ORDERS FOR COSTS MADE BELOW BE SET ASIDE AND THAT IN LIEU THEREOF THE APPELLANTS PAY THE COSTS OF THE RESPONDENTS OF THE WHOLE ACTION, INCLUDING RESERVED COSTS.
7. THAT THE RESPONDENTS PAY THE APPELLANTS~ TAXED COSTS OF THE APPEAL, LIMITED TO FOUR DAYS' HEARING.
..."
| 4. | The parties are agreed that: (a) the additional interest allowed by this Court |
in respect of the period after the delivery of judgment in the Trial Division should have only been calculated from the date of judgment to the date of payment, 27 March, 1992;
(b) the amount to which each of Agipcoal and Pacific was entitled in accordance with the judgments in the Trial Division, varied to give effect to
this Court's decision, was not $15,720,000.00
but $14,297,704.92; and
(c) Agipcoal and Pacific had each been overpaid $15,202,295.08 by Idemitsu on 27 March 1992.
5. The parties are also agreed that Idemitsu is entitled to be repaid the amount overpaid by each of Agipcoal and Pacific, together with interest.
6. (a) On 7 April, 1993, Pacific repaid Idemitsu $13,780,000.00, leaving outstanding (it is agreed) $1,422,295.08 principal plus interest.
(b) On 14 April, 1993, Agipcoal made an identical payment to Idemitsu, with (it is agreed) similar consequences.
7. (a) On 9 June, 1993, Pacific paid Idemitsu a further
$2,396,853.86.
(b) On 15 June, 1993, Agipcoal made an identical payment to Idemitsu.
8. Since this Court's judgment was delivered on 24 March 1993, the parties have made further written submissions and placed considerable evidence before the Court with respect to a number of issues related to the orders made in Appeals Nos. 38 and 39 of 1993.
9. One of the points of present dispute concerns the costs order which the Court made. It is convenient to postpone consideration of this question for the moment.
10. Both the other issues relate to the adjustment of the parties' rights and obligations arising from the excessive damages awarded to Agipcoal and Pacific in the Trial Division and Idemitsu's payment of the amounts assessed while the appeals were pending.
(a) One question concerns the quantification of the interest to which Idemitsu is entitled. Idemitsu claims that the repayments so far made to it are less than its full entitlements.
(b) The second question is whether Idemitsu is entitled to the cost of opening a standby letter of credit and losses which it sustained by reason of exchange rate fluctuations between the time when it paid Agipcoal and Pacific and the time when the over-payments were repaid.
11. After judgment was given against Idemitsu in the Trial Division, a dispute arose as to whether there should be a stay pending appeal. In the course of those proceedings, Idemitsu made it plain that, in order to meet the judgments against it, it would need to convert the large sums involved from Japanese yen to Australian currency. However, C.R.A. Limited, the parent of Pacific, and Agip S.P.A., the parent of Agipcoal, gave undertakings that Idemitsu would be repaid "such of the judgment monies ... as may be ordered to be repaid by the Court of Appeal", and the stays sought by Idemitsu were refused. No appeal was brought from that decision.
12. Neither Idemitsu Queensland Pty. Ltd. nor Bligh Coal Limited had the funds needed to satisfy the judgments and Idemitsu Kosan Co. Ltd.'s funds were predominantly held in Japanese yen, although it also had some cash reserves in U.S. dollars.
13. On the day on which the trial judge refused to stay the judgments against Idemitsu pending appeal, 25 March, 1992, the Tokyo head office of Idemitsu Kosan Co. Ltd. was requested to forward the funds needed to satisfy the judgments to Idemitsu Queensland Pty. Ltd. and Bligh Coal Limited and, on the following day, Idemitsu Kosan Co. Ltd. applied to the Japanese Ministry of Finance for permission to do so.
14. On 27 March 1992, Idemitsu Kosan Co. Ltd. opened a stand-by letter of credit which Idemitsu Queensland Pty. Ltd. used to borrow $59 million from the Bank of Tokyo Australia Limited to satisfy the judgments in favour of Agipcoal and Pacific. The fee charged by the bank was 337,964 yen which, at an exchange rate of $1.00 = 104.54 yen, was equivalent to $3,232.87.
15. On 2 April, 1992, after receiving permission to do so from the Japanese Ministry of Finance, Idemitsu Kosan Co. Ltd. used its cash reserves to purchase $59 million from the Bank of Tokyo in Tokyo at a cost of 6,092,930,000 yen and an exchange rate of $1.00 = 103.27 yen. Idemitsu did not act to hedge its exposure to the Australian dollar. The funds purchased by Idemitsu Kosan Co. Ltd. were then transferred to Idemitsu Queensland Pty. Ltd. and used by it to repay the $59 million which it had borrowed from the bank.
16. (a) At the exchange rate applicable on 27 March, 1992, the overpayment of $15,202,295.08 made by Idemitsu to each of Agipcoal and Pacific was equivalent to 1,589,247,927.66 yen.
(b) At the exchange rate applicable on 2 April 1992, the overpayment of $15,202,295.08 made by Idemitsu to each of Agipcoal and Pacific was equivalent to 1,569,941,012.91 yen.
17. Meanwhile, on 27 March 1992, Pacific deposited the entire sum ($29.5 million) which it had that day received from Idemitsu with C.R.A. Finance Pty. Ltd., a company in the same group as Pacific which acts as financier to other companies within the group.
18. On Monday 30 March, 1992, Agipcoal deposited an unspecified amount with Citibank Limited on a 30 day bank bill facility. Although the amount deposited was not stated, it was originally more than enough to meet the repayment required of Agipcoal to Idemitsu consequent upon this Court allowing Idemitsu's appeal against the damages awarded by the trial judge.
19. Between 27 March, 1992, and the repayments made to Idemitsu on 7 April and 9 June, 1993, Pacific earned interest totalling almost $1 million on the overpayment which it received from Idemitsu on 27 March, 1992.
Idemitsu submitted that the interest received by Pacific from C.R.A. Finance Pty. Ltd. "may not represent the entirety of the benefit" to Pacific. However, I am not prepared to find in favour of Idemitsu on either of the conjectural bases argued, especially when there is direct evidence to the contrary.
20. Between 27 March, 1992 and the repayments made to Idemitsu on 14 April and 15 June, 1993, Agipcoal earned interest totalling almost $800,000.00 on the overpayment which it received from Idemitsu on 27 March 1992. In addition, from 15 September 1992, it used part of the overpayment to fund its business operations and, in doing so, saved interest at the rate of 10% per annum totalling in excess of $300,00.00. Idemitsu submitted that the rate of 10% per annum did not include "the relevant risk margins and fees which would be charged by a lender to a borrower". However, we are not prepared to find in favour of Idemitsu in the absence of evidence to support this assertion and direct evidence to the contrary. The total benefit to
Agipcoal from the overpayment was in excess of $1.1 million.
21. Idemitsu claimed that interest on the overpayment which it made to Agipcoal and Pacific should be calculated at 12% per annum and, perhaps, that compound not simple interest should be required to be paid. It pointed to the rate adopted by the trial judge and this Court in providing for interest on the damages payable by Idemitsu. However, that rate of interest was allowed in this Court because it had been allowed below and was not challenged by Idemitsu on appeal.
Further, as events have transpired, it has only been used as the appropriate rate until 27 March, 1992, the date on which Idemitsu paid the damages assessed by the trial judge, and there has since been a substantial fall in interest rates.
22. On the whole, it appears to be desirable that the rate of interest to be paid to Idemitsu should be fixed taking into account to some extent that, although interest rates have fallen substantially, the rate paid by Idemitsu up to 27 March 1992 was 12%. I would favour fixing the rate of interest to be paid on monies paid back to Idemitsu at 8% compounded on monthly rests.
23. Paragraphs 6 and 7 detail the amounts repaid to Idemitsu by Pacific and Agipcoal. Immediately it received each amount, it converted it to yen at the then applicable exchange rate. Evidence adduced by Idemitsu showed that Idemitsu suffered a loss of 319,696,000 yen ($3,992.706.38) in respect of its overpayment to Pacific and a loss of
296,683,400 yen ($3,629,598.72) in respect of its
overpayment to Agipcoal.
24. Idemitsu claims:
(a)
that it is entitled to interest on its overpayments to Pacific and Agipcoal at the rate of 12% per annum or in an amount equivalent to the investment cost to it of its overpayments: the first of these alternatives has already been rejected, and it remains to be considered whether Idemitsu's entitlement is to the investment cost to it or the benefits respectively received by Pacific and Agipcoal from the investments (see para. 23(a)); and
(b)
that it is entitled to recover its foreign exchange losses and currency conversion costs.
25. There are two contrasting opinions concerning the court's power and duty in moulding its orders in appellate proceedings so as to adjust the rights and obligations of the parties.
26. The narrower view entitles the successful party to
recover any payment made or property or possession
transferred or delivered pursuant to court order, and
perhaps to receive any associated benefits which have
accrued to the other party, but otherwise does not provide
for the successful party to be compensated for loss
occasioned by an order of the court or the successful
party's compliance with the court's order.
27. Some support for this view is to be found in
early authorities, a number of which are referred to in an
article by D.M. Gordon Q.C. "Effect of Reversal of Judqment
..." in (1958) 74 LQR 517 at pp.521-524. Compare 4
Halsbury's Law of England, Vol.17 "Execution", paras. 461,
522. It is not clear whether, and if so to what extent, this
approach is associated with procedural issues related to the
writs of error and restitution, which are of little, if any,
continuing significance. See also National Australia Bank
Ltd. v. Bond Brewing Holdings Ltd. (1991) 1 VR 386, 593-594
per Brooking J.
28. In Production Spray Painting and Panel Beating Pty. Ltd. v. Newnham (No.2) (1992) 27 NSWLR 659, the New South Wales Court of Appeal ordered the repayment of sums paid pursuant to orders of the Industrial Commission which were set aside. At p.661, Handley JA., with whom Mahoney and Priestley JJA. agreed, said:
"It is well established that the reversal of a judgment on appeal entitles the successful appellant to recover any monies paid under the reversed judgment."
At p.662, his Honour said:
"The claimants also sought orders from this Court for payment of the costs incurred by them in the Industrial Commission. In my opinion, the Court is not entitled to make such orders. No question of restitution is involved." (Emphasis added).
This may have been intended as an endorsement of the narrower view but is not necessarily so. Costs are the subject of specific powers and practices and it is well established that an order for costs can only be made if it is in accordance with those powers and practices to do so. Even on the wider view, a successful party is not entitled to be compensated for all injury connected with litigation, as distinct from loss sustained as a direct result of, or of compliance with, a court order.
29. National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. involved the reversal of an order appointing interim receivers and managers of the assets and undertaking of a number of companies. The Appeal Division of the Victorian Supreme Court held that, in the absence of an undertaking as to damages by the creditors which had applied for the order, the Court had no power to award damages to the companies for any injury which they suffered as a result of the order being incorrectly made.
| 30. | Murphy J. said at p.588: "Next, restitutio in integrum has been espoused as a principle by the appellants. The cases relied upon to support the assertion that it is just and equitable to award monetary compensation for any loss caused the appellants, do not in my view go this far in terms. It must be conceded that it is an established principle that it is just and equitable to allow interest upon money ordered to be repaid to a defendant who has been wrongly ordered to pay a capital sum to a plaintiff: Rodger v. Comptoir D'Escompte de Paris (1871) L.R. 3 P.C. 465, at pp. 475-6." |
His Honour then quoted from the judgment of the Privy Council in that case, delivered by Lord Cairns, that it is the duty of the court to take care "... that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court", and continued:
"Applying those broad principles their
Lordships in Rodger's Case concluded that in
order to avoid injustice and to achieve 'the
perfect judicial determination which it must be
the object of all courts to arrive at', interest
should be paid on the money wrongfully ordered to
be paid and in fact paid by the appellants. This
principle has been applied ever since.By the application of the principles expressed by their Lordships in that case, the appellants here argue, with some force, that there should be an enquiry as to the damage that they have suffered, directly consequential upon the making of the wrongful order for receivership and an order that the respondents who sought the order in the circumstances set out, pay monetary compensation to them as well as restoring to them their depreciated undertakings and assets."
His Honour went on to reject that argument for a number of reasons which are not particularly apposite to the present matter, including the limitations which exist on the recoverability of damages for malicious abuse of civil process, "the absence of any precedent over the years for the making of such an order and the almost invariable practice of the court of requiring that an undertaking be
given as the 'price' of obtaining the relevant interlocutory relief" and "the fact that [the appellants] cannot point to a right entitling them in equity to monetary compensation. What the respondents have done is come to the court seeking payment of an alleged debt, and in the course of such action have sought interlocutory equitable relief in
support of that claim. The court has ruled that
the interlocutory equitable relief sought was wrongly granted, and have set it aside, but this did not constitute the breach or infringement of any recognisable right in equity which might have entitled the appellants/defendants to monetary compensation or might have obliged the respondents to put the appellants 'in as good a position pecuniarily as that in which he was' (they were) 'before the injury': Nocton v. Lord Ashburton [1914] A.C. 932, at p. 952."
The words taken from Nocton in this passage express the test in the language of restitutio in integrum, which is discussed further below.
31. Kaye J. referred to, but did not discuss, the topic of present significance, but Brooking J. did so at considerable length between pages 591-599 ((1991) 1 V.R.). Because of the range and importance of his Honour's reasons for judgment, it is appropriate to quote from them at some length. His Honour said:
"The first question is that of the limits of the principle expressed by Lord Cairns in Rodger's Case. For the passage cannot be read as asserting that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. ... There are and must be limits to how far the courts will go in putting matters right on appeal. One begins by setting aside the erroneous judgment or order and replacing it with the right one. What else should be done? If money has changed hands under the judgment or order, an order will be made for its repayment (Moore v. Cunard Steamship Co. 28 B.W.C.C. 162, at pp. 169-70, per Lord Blanesburgh; Lissenden v. C.A.V. Bosch Ltd. [1940] A.C. 412, at p. 430, per Lord Aitkin) and interest can in addition be awarded on the amount to be repaid: Rodger's Case; Merchant Banking Co. v. Maud (1874) LR. 18 Eq. 659 and The Commonwealth v. McCormack (1984) 155 C.L.R. 273. If the erroneous judgment is in the defendant's favour, the appellate court can not only give judgment for the debt but also allow interest for the period between the original judgment and the appeal: Bank of Australasia v. Breillat (1847) 6 Moore 152; 13 E.R. 642. Strangely there is no reference to the broad principle in decisions dealing with whether the Court of Appeal should ante-date its judgment: Borthwick v. Elderslie Steamship Co. (No. 2); Belgian Grain & Produce Co. Ltd v. Cox & Co. (France) Ltd [1919] W.N. 317. If the plaintiff obtains a money judgment and the appeal fails the court on appeal can require payment of interest where the judgment would not otherwise carry interest and the parties have acted as if a stay had been granted: Central Electricity Board of Mauritius v. Bata Shoe Co. (Mauritius) Ltd [1983] 1 A.C. 105. These results are all eminently fair and just; that arrived at in the Bata Case is not an example of an order consequential upon the correction of a curial error.
But while the cases show that the courts will often, by way of setting things right on appeal, go beyond the mere substitution of the right judgment or order for the wrong one, it is not the law that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. Any such unlimited principle is inconsistent with the law's recognition of the torts of malicious abuse of process and malicious institution of proceedings, with their uncertain, but certainly limited, scope: Metall und Rohstoff A.G. v. Donaldson Lupan & Jenrette Inc. [1989] 3 W.L.R. 563, at pp. 611-15. And any such unlimited principle would mean that an appellate court would be entitled or obliged to award compensation or damages whenever it set aside an erroneous judgment or order which had caused damage to the appellant which was not regarded for this purpose as too remote. Yet many final judgments or orders that may be set aside on appeal are apt to cause great damage to the unsuccessful party in circumstances where it is unthinkable that the appellate court should have power to award damages or compensation. An order winding up a corporation is about as drastic an order as one could imagine. Such an order will rarely be stayed
pending an appeal, and great and irremediable damage may be done to the corporation by the order in the meantime. But I have never heard it suggested that if a winding up order is set aside on appeal the appellate court may award damages or compensation against the party who obtained it. At the trial of an action a final injunction to prevent the commission of a nuisance may put the defendant out of business. May the court of appeal not only set aside the injunction but also award damages for the destruction of the defendant's business? A judgment for possession of business premises may mean financial disaster for the defendant who claims that his lease has not been duly determined. If there is no stay and the defendant succeeds on appeal, is he to be awarded damages on the principle that the court must take care that 'no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court'?"
After reference to the writs of error and restitution, his
Honour went on to express the opinion that the successful
party's rights were limited to recovery of any
benefits obtained by the unsuccessful party under the
reversed judgment:
"In the more modern statements of the power of the
court to do what is necessary to achieve justice
when a decision is reversed on appeal, the
notion of restitution or restoration remains. In
Rodger v. Comptoir D'Escompte de Paris, Lord
Cairns, at p. 473, speaks of 'not merely
restitution of the money which had been paid under
the original judgment, but also interest upon all
the sums they had paid. At pp. 475-6, his
Lordship refers to 'restitution' and to
'restoring' to the appellants the money improperly
taken from them. True it is that in one sense
interest is not something that is restored. But in
another sense it is, for, as his Lordship said, at
p. 475, interest is the ordinary fruits derived
from the enjoyment of money, and those fruits
should be 'restored' to the appellant by the
person who enjoyed, or was in a position to enjoy,
them. The "restoration" approach was adopted by
Sir James Bacon V-C in Merchant Banking Co. v.
Maud. In Cox v. Hakes (1890) 15 App. Cas. 506, at
p.547, Lord Field (who dissented) described
restitution in integrum as the right of every
successful appellant and this observation was
cited with approval by the High Court in The
Commonwealth v. McCormack, at p. 276, in which
case the court also endorsed the statement of
principle in Rodger's Case which I cited at the
outset of these reasons, a statement that had
earlier been adopted by Isaacs and Rich JJ. in
Heavener v. Loomes (1924) 34 C.L.R. 306, at p.
324. In Lissenden v. C.A.V. Bosch Ltd., at p.
430, Lord Atkin spoke of restitution.The authorities I have mentioned rest the power of the court to direct repayment or to award interest on the duty of courts to strive to arrive at a perfect judicial determination which will avoid injustice and to take care that no act of the court does injury to a suitor (Rodger's Case, at pp. 475-6), or on the need to get at justice (Breillat's Case, at p. 204), or on the general jurisdiction of the courts to act rightly and fairly (Heavener v. Loomes, at p. 324), or on the need to do complete justice between the parties (Central Electricity Board of Mauritius v. Bata Shoe Co. (Mauritius) Ltd., at pp. 107-8)."
The basic features of the narrower view are encapsulated in that passage. It is noteworthy that, although reference is made by his Honour to "restitution in integrum", the discussion does not analyse that concept but rather is
concerned with the "restitution" or "restoration" of what is originally received under court order by the party who is ultimately unsuccessful, together with any consequential benefits which accrue to that party.
Brooking J. then referred to American authority, including the judgment of the United States Supreme Court in Northwestern Fuel Co. v. Brock (1891) 139 U.S. 216, which he set out in full, including the final paragraph which referred to "the power of a court, whose judgment is set aside on its own motion or reversed by order of an appellate tribunal, to direct restitution, so far as practical, of all property and rights which have been lost by the erroneous judgment."
With reference to this passage, his Honour said:
"It is ... noteworthy that the last paragraph speaks of 'restitution ... of all property and rights which have been lost by the erroneous judgment'. There is no suggestion that except in this limited sense the successful litigant may be compensated for loss sustained by him in consequence of the judgment."
Taken in that way, what was said in the Northwestern Fuel case does not provide for restitution in integrum but, with its reference to compensation for loss, the passage is capable of being read differently.
The limited form of "restoration" which Brooking
J. considered justified by the cases was then further
emphasised by reference to other decisions of the Supreme
Court of the United States and the form of the old writ of
error. Both referred to the restoration of the successful
appellant (plaintiff in error) "to all things which he has
lost by occasion of the said judgment". In Arkadelphia
Milling Co. v. St. Louis Southwestern Railway Co. (1919) 249
U.S. 134, the Supreme Court referred to "the principle, long
established and of general application, that a party against
whom an erroneous judgment or decree has been carried into
effect is entitled, in the event of a reversal, to be
restored by his adversary to that which he has lost thereby.
| . | ..". While that passage is wider than the concept of "restoration" spoken of by Brooking J., in the same |
case the Court said that it was "inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process", which is arguably narrower.
Later, Brooking J. continued:
"So in Atlantic Coast Line Railroad Co. v. Florida
(1935) 295 U.S. 301, at p. 309, the court stated
the rule recognised by its earlier decisions as
requiring that 'what has been lost to a litigant
under the compulsion of a judgment shall be
restored thereafter, in the event of a reversal,
by the litigants opposed to him, the
beneficiaries of the error'. Again the notion is
not of the restoration of a party to his former
position by an award of damages but of the
restoration to him of what has been taken from him
by the opposite party.This survey shows that the principle on which the courts have for centuries acted is that when an erroneous judgment or order is overturned, whether by means of appeal or by any other procedure, the court will achieve a just result by requiring anything that has been taken from him by the other party by virtue of the wrong decision to be restored. Interest is for this purpose treated as the fruit of money and he who has had the use of money will not be heard to say that there were no fruits. The principle is, as it was in the reign of the first Elizabeth (Eyre v. Woodfine Cro. Eliz. 278; 78 E.R. 533), one of restitution or restoration. The court is seeking to restore to one party what it has wrongly taken from him and given to the other. It does not seek to restore the successful party to his former position by awarding damages to compensate him for loss flowing from the erroneous judgment or order. There is no basis for an award of damages. No right of the party suffering loss has been infringed. There is no decision of the courts of this country or of England which suggests that the power of which the decision in Rodger's Case is an illustration authorises an award of damages. As I said earlier in these reasons, many final judgments and orders are apt to cause great damage to the unsuccessful party; I gave as examples a winding up order, a final injunction in a nuisance action and a judgment for possession of business premises. Why is it that no application has ever been made, after a successful appeal in a case of this kind, to have the injury done to the suitor by the act of the court addressed on the principle of Rodger's Case by an award of damages? The
reason is clear. No right of the party ultimately successful has been infringed and the principle of Rodger's Case allows no more than the passing back to that party of what has been taken from him.
It is significant that in the consideration,
on an application for a stay pending the hearing
of an appeal, of the injury that the judqment
or order may do to the appellant (see, for
example, Alexander v. Cambridge Credit Corporation
Ltd (1985) 2 N.S.W.L.R. 685, at p. 696) it is
never, so far as I am aware, suggested that the
appellate court has inherent power to compensate
the appellant for that injury except by way of
ordering restitution.Attempts to recover damages in the United States have not met with success. An example is Green County v. Duke Power Co. 107 F. (2d) 484; 131 A.L.R. 870, a decision of a Circuit Court of Appeals rejecting a claim for 'restitution' of profits lost by Greenwood County, which said that an injunction wrongly granted on the application of a power company had delayed the construction of its power station for three years. Restitution could not be awarded because, although the power company had been able to trade without competition, it had received nothing which the
county has lost as a result of the injunction. Certiorari was denied by the United States Supreme Court (309 U.S. 667). The annotation in 131 A.L.R. 878 cites other decisions, including Tenth Ward Road District v. Texas & Pacific Railway Co. 12 F. (2d) 245; 45 A.L.R. 1513, where again the distinction is drawn between restoration, which is permissible, and an award of damages which is not. So in Bridges v. McAlister 51 S.W. 603 the Court of Appeals of Kentucky rejected a claim for damages for flooding caused by the filling of a ditch pursuant to a mandatory injunctive order which had been overturned on an earlier appeal. At p. 605, the court said this: 'When a judgment is reversed, restitution must be made of all that has been received under it, but no further liability should in any case be imposed.' Another example of
the principle at work is State National Bank v. Ladd 162 P.R. 684, holding that where property is sold under an erroneous judgement which is later reversed the defendant may recover, by way of restitution, not the value of the property sold but only the proceeds of sale. In Thompson v. Reasoner 24 N.E. 223, a decision of the Supreme Court of Indiana, Mitchell C.J. had this to say, at p. 225: 'While a judgment defendant is entitled to compel the fullest restitution of all benefits which the plaintiff received on account of the enforcement of an erroneous judgment, it is not strictly accurate to say that the latter is liable to an action for damages for enforcing a judgment pending an appeal, where there has been no stay of proceedings. There would be no inducement for an appellant in any case to secure a supersedeas to stay proceedings, if it were held that theplaintiff assumed the liability of all damages which might result from the enforcement of the judgment; nor would any one venture to enforce a judgment while the right of appeal existed, or while an appeal was pending. Where payment of a subsisting judgment is enforced by taking out regular process, the plaintiff is acting under authority of law, and cannot be held responsible for damages as a wrong-doer, because it turns out in the end that the court committed an error in rendering the judgment. The plaintiff takes the chance of losing the title to any property he may have received under the judgment; but he cannot be compelled to make good all the damage which the defendant who neglected to stay proceedings pending the appeal, may have sustained by the erroneous action of the court."'
32. While Brooking J.'s highly persuasive judgment in National Australia Bank Ltd. v. Bond Brewing Holdings Ltd. referred to the decisions of the High Court in The Commonwealth v. McCormack and Heavener v. Loomes and of the Privy Council in Rodger v. Comptoir d'Escompte de Paris and Central Electricity Board v. Bata Shoe Co. Ltd., it did not fully explore the implications of those decisions.
33. Rodger v. The Comptoir D'Escompte de Paris placed the court's power, and the successful party's entitlement, on a wide basis. Lord Cairns, in addition to the passage quoted by the High Court in Heavener v. Loomes which is referred to below, said, in delivering the judgment of the Privy Council, at pp.475-476:
"It is contended, on the part of the Respondents here, that the principal sum being restored to the present Petitioners, they have no right to recover from them any interest. It is obvious that, if that is so, injury, and very grave injury, will be done to the Petitioners. They will by reason of an act of the Court have paid a sum which it is now ascertained was ordered to be paid by mistake and wrongfully. They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed. So far, therefore, as principle is concerned, their Lordships have no doubt or hesitation in saying that injustice will be done to the Petitioners, and that the perfect judicial determination which it must be the object of all Courts to arrive at, will not have been arrived at unless the persons who have had their money improperly taken from them have the money restored to them, with interest, during the time that the money has been withheld.
It is said, however, that there is no authority for ordering the payment of interest. The cases of Writs of error which have been referred to can hardly be considered as precedents for a case of the present kind. The proceeding upon them was of a highly technical character. It was a matter of great rarity for a Writ of error not to suspend execution in any case, where execution had not actually taken place before the Writ of error was brought. Restitution no doubt was ordered, and it may well be that under the term 'restitution,'
in the case of a money payment, interest was not given by the Court which carried the restitution into effect. But whether that be so or not, their
Lordships do not think it necessary to
inquire further into that matter. Upon proceedings
which are much more analogous to the present,
undoubtedly interest has been given."
Although there is reference to the benefit enjoyed, or possibly enjoyed, by the party to whom the judgment was paid, the primary emphasis in Rodger v. The Comptoir D'Escompte de Paris seems to be on the need to avoid injury to the party making the payment by requiring a compensatory payment.
34. Central Electricity Board v. Bata Shoe Co. Ltd. did not involve any question following the reversal of a judgment on appeal. The Privy Council affirmed the judgment of the Supreme Court of Mauritius, which the unsuccessful defendant had not satisfied. There was no statutory provision enabling interest to be awarded on the judgment sum in respect of the period between the Supreme Court judgment and the dismissal of the appeal. In delivering the judgment of the Privy Council, Lord Brandon of Oakbrook said at pp.107-108:
"It was common ground that there was no
statute or ordinance in force in Mauritius having
an effect comparable to that of the Judgments Act
1838 in England. It was contended, however, forBata that this Board has now, and has always had, a common law jurisdiction to award interest, or to direct the award of interest, in any case where the doing of complete justice between the parties to an appeal so requires. In support of that contention counsel for Bata relied mainly on two authorities of long standing. The first authority was Bank of Australasia v. Breillat (1847) 6 Moo.P.C.C. 152, 206, an appeal from the Supreme Court in New South Wales. The second authority was Rodger v. Comptoir d'Escompte de Paris (1871) LR. 3 P.C. 465, an application in an appeal from the Supreme Court of Hong Kong.
In the first case it was held that where appellants, having failed in a monetary claim in the courts below, succeeded on appeal to this Board, the latter had a common law jurisdiction to award to the appellants interest on the amount of the moneys finally recovered from the date on which they should have obtained judgment for such amount in the first court below. In the second case it was held that where appellants, who had satisfied a money judgment of the court below, subsequently succeeded, on an appeal to this Board, in having such judgment reversed, this Board had jurisdiction to order that the money paid by the appellants should be repaid to them by the respondents with interest from the date of the original payment.
The present case differs from both of the
two cases referred to above in that Bata
succeeded in the court below, and have succeeded
again in this appeal. The C.E.B. did not obtain a
stay of execution of the judgment of the Supreme
Court pending their appeal to this Board. It
appears, however, that there was an implied
agreement or arrangement between the parties or
their legal representatives that matters should
proceed as if a stay of execution had been
granted. The situation is, therefore, that the
C.E.B. have had, for a period of nearly four
years, the benefit of the use of moneys which
should, according to the rights of the case, have
been paid by them to Bata at the beginning of that
period. The principle on which the Board acted in
Rodger v. Comptoir D'Escompte de Paris, L.R. 3
P.C. 465, referred to above was explained at
considerable length by Lord Cairns, at pp.
475-476. It can be summarised as being that, in
order to do complete justice between the parties,
money paid in satisfaction of a judgment
subsequently reversed by this Board should be
repaid with interest from the date on which the
money concerned was paid.In their Lordships' view, although the situation in the present case differs, in the respects stated, from the situation in each of the two cases referred to above, the same general principle, founded on the need to do, so far as possible, complete justice between the parties, can and should be applied, by analogy, in the present appeal. Their Lordships are, therefore, of the opinion that they have jurisdiction, which
has in one case at least been described,
whether rightly or wrongly, as a common law
jurisdiction, to order the C.E.B., as one
of the consequences of the dismissal of the
appeal, to pay to Bata interest on the total
amount of the damages awarded to them by the
Supreme Court from June 12, 1978, the date of the
judgment of that court, until payment. Their
Lordships are further of the opinion that, in the
circumstances of this case, it would be just
for them to exercise that jurisdiction. Their
Lordships, however, take the view that the Supreme
Court, by reason of its knowledge of conditions in
Mauritius during the period for which interest is
to be awarded, is far better placed than they are
to determine the appropriate rate or rates at
which such interest should be paid, and that the
determination of such rate or rates should
accordingly be remitted to that court for
determination."
This case strongly suggests that the court has a wide discretion, unfettered by technical considerations, which is influenced only by considerations of justice between the parties, cf. General Tyre and Rubber Co. v. Firestone Tyre and Rubber Co. Ltd. (1975) 1 WLR 819, 841, 836; BP ExPloration (Libya) Co. Ltd. v. Hunt (No.2) (1979) 1 WLR 783 845-846, and see sections 72 & 73 of the Common Law Practice Act 1867 as amended.
35. In their judgment in Heavener v. Loomes (1924) 34 CLR
306, 323-324, Isaacs and Rich JJ. said:
"On the facts before the Court on this interlocutory application, the appellants were, at the time the motion was dealt with, entitled to an injunction to restrain the respondent from receiving the money sued for. She has, it appears, since received it, and the protection should be moulded accordingly, for actus curiae nemini
facit injuriam. This maxim is no mere form of
words. Nor is it limited in its application to the
primary tribunal. Twice have the Privy Council
emphasized the importance of observing it. In
Jai Berham v. Kedar Nath Marwari (1922) L.R. 49
Ind. App. 351, at pp.355-356, Lord Carson, for
the Judicial Committee, speaking of the duty of an
appellate Court, when varying or reversing a
decree, to place the parties in the position they
would have occupied but for the decree or the part
varied, said:- 'It is inherent in the general
jurisdiction of the Court to act rightly and
fairly according to the circumstances towards all
parties involved. As was said by Lord Cairns in
Rodger v. Comptoir D'Escompte de Paris (1871) L.R.
3 P.C. 465, at p.475: 'One of the first and
highest duties of all Courts is to take care that
the act of the Court does no injury to any of the
suitors, and when the expression "the act of the
Court" is used, it does not mean merely the act of
the primary Court, or of any intermediate Court of
Appeal, but the act of the Court as a whole, from
the lowest Court which entertains jurisdiction
over the matter up to the highest Court which
finally disposes of the case.'" The respondent,
then, should be ordered to bring into Court the
money she received from Dennis, or so much
thereof as the appellants are willing to consider
their indemnification to abide the result of the
suit or further order. The appellants should also,in our opinion, have their costs here and below."
Thereafter, their Honours quoted from Rodger v.
Comptoir D'Escompte de Paris.
36. The passage underlined in the last quote broadly
reflects the language of restitutio in integrum: cf
Livingstone v. Rawyards Coal Co. (1880) 5 App. Cas. 25, 39 per Lord Blackburn; Robinson v. Harman (1848) 1 Ex. 850, 855 per Parke B. That concept is clearly explained in Hungerfords v. Walker (1989) 171 CLR 125. Mason CJ. and Wilson J., in a joint judgment with which Brennan and Deane JJ. were in substantial agreement, referred at p.143 to the fundamental principle that a plaintiff awarded damages in tort or for breach of contract is entitled to "restitutio in integrum" and continued:
"According to that principle, the plaintiff is
entitled to full compensation for the loss
which he sustains in consequence of the
defendant's wrong, subject to the rules as to
remoteness of damage and to the plaintiff's duty
to mitigate his loss. In principle he should be
awarded the compensation which would restore him
to the position he would have been in but for the
defendant's breach of contract or negligence.
Judged from a commercial viewpoint, the plaintiff
sustains an economic loss if his damages are not
paid promptly, just as he sustains such a loss
when his debt is not paid on the due date. The
loss may arise in the form of the investment cost
of being deprived of money which could have been
invested at interest or used to reduce an existing
indebtedness. Or the loss may arise in the form of
the borrowing cost, i.e., interest payable on
borrowed money or interest foregone because an
existing investment is realized or reduced."
37. The Commonwealth v. McCormack is the most recent pronouncement of the High Court on the adjustment of the rights of the parties following on appeal. It involves (pp.276-277) express indorsement of the two Privy Council decisions to which reference has been made and also of Heavener v. Loomes, which it is said "espoused the principle" of Rodger v. The Comptoir D'Escompte de Paris.
Further, the High Court in The Commonwealth v. McCormack accepted a successful appellant's entitlement to restitutio in integrum. At p. 276, the joint judgment quoted with approval a dictum of Lord Field in his dissenting judgment in Cox v. Hakes (1890) 15 App. Cas. 506 at p.547, where his Lordship said: "Restitutio in integrum is the right of every successful appellant.".
38. The full ramifications of this doctrine have not yet been worked out, and it is unnecessary for present purposes to consider judgments other than money judgments; for example, a winding up order, final injunction in a nuisance action or judgment for possession of business premises as instanced by Brooking J. in National Australia Bank Limited v. Bond Brewing Holdings Ltd..
Nor is it necessary to characterize the amount to which
a successful party is entitled as damages or to identify the
infringement of some right at an earlier stage of
the proceedings. The theory behind the relevant doctrine is
one of compensation to adjust the position of the parties to
achieve a just result.
Further, while an erroneous money judgment that has
been satisfied will commonly involve more than the repayment
of the principal sum, the policy considerations
underpinning the successful party's entitlement will limit
what is recoverable from the unsuccessful party, just as
remoteness of damage and the obligation to mitigate loss
impose limitations on the damages which are recoverable in
other areas of the law. This choice avoids the risk that a
successful party may be disadvantaged by the unsuccessful
party's poor business acumen or perhaps even its failure to
invest at all.
39. However, the standby letter of credit costs and exchange conversion losses are in a quite different category. While it was reasonable to obtain the standby letter of credit to ensure prompt payment, the judgments appealed from did not require Idemitsu to convert yen into Australian dollars or to do so without hedging its exposure to loss. Idemitsu did not establish that it was either necessary or reasonable to act in this manner or to continue its unqualified risk of currency fluctuations throughout the material period. In these circumstances, it is unnecessary to consider whether the relevant expense and loss sustained
by Idemitsu would otherwise be recoverable from Agipcoal and Pacific. It is sufficient to say that, on what is before the Court, Idemitsu is not entitled to recover.
40. The order with respect to costs in each appeal was that the respondents pay the appellants' taxed costs of the appeal, limited to four days' hearing.
41. It was argued for the respondents to the appeals that this was unduly favourable to the appellants, or at least to the appellants in appeals nos. 38, 39 and 44 of 1992. Notwithstanding that the damages awarded were reduced by tens of millions of dollars and that other orders made by the trial judge were either set aside or varied, much of the appeal record, the parties' written submissions and the oral argument were concerned with issues upon which the appellants failed.
42. In Jamal v. Secretary, Department of Health (1988) 14 NSWLR 252, Mahoney JA. referred at p.271 to the ordinary rule "... that the general costs of an appeal ... follow the event ...," subject to exceptions, the first of which his Honour described in the following terms:
"... if the costs of the appeal have been increased by an issue on which the successful parties fail and those costs are of sufficient significance to warrant a special order, the party who succeeded on that issue should have the costs of it, to be set off against the general costs of the appeal ...~"
The costs orders originally made were intended to give broad effect to that principle, by the somewhat simpler means of limiting the costs recoverable by the successful appellants.
43. On reconsideration of the matter, including the various
points referred to by the parties in their
respective submissions, we are of opinion that the original
orders for costs in appeals numbers 38 and 39 of 1992 were
unduly favourable to Idemitsu.
Accordingly, in lieu of the costs orders foreshadowed in respect of those appeals, an order should be substituted in each that the respondents pay one-third of the appellants' taxed costs of the appeal, including any reserved costs. The costs orders in respect of appeals numbers of 43 and 44 of 1992 should stand
Summary
In summary, the orders pronounced on 24 March 1993 in respect of Appeal Nos. 38 and 39 of 1992 should be varied by substituting the figure of $14,297,704.92 for the figure of $15,720,000.00. Otherwise the orders pronounced on 24 March, 1993, other than the orders with respect to the costs of the appeals in Appeals Nos. 38 and 39 of 1993, are to stand and, in addition, it should be ordered that:
(a) Agipcoal and Pacific each pay to Idemitsu a further amount calculated in accordance with these reasons; and
(b) the respondents in appeals nos. 38 and 39 of 1993 pay to the appellants one-third of their taxed costs of the appeals, including any reserved costs and the costs of the further submissions.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
[Idemitsu Queensland & ors. v. Agipcoal Australia & ors.]
Appeal No. 38 of
1992
BETWEEN:
IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
Appeal No. 39 of
1992
BETWEEN:
IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 43 of
1992
BETWEEN:
LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD
Appellant
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 44 of
1992
BETWEEN:
LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD
Appellant
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
______________________________________________________________
THE PRESIDENT
MR JUSTICE PINCUS MR JUSTICE DAVIES
______________________________________________________________
Judgment delivered 21/12/1993
SEPARATE REASONS FOR JUDGMENT OF T~E PRESIDENT, PINCUS AND
DAVIES
JJ.A., ALL AGREEING AS TO THE ORDERS TO BE MADE.
________________________________________________________________
VARY THE ORDERS OF THIS COURT PRONOUNCED ON 24 MARCH 1993 IN
APPEAL NOS. 38 AND 39 OF 1992 BY:
1. SUBSTITUTING THE FIGURE OF $14,297,704.92 FOR THE FIGURE OF $15,720,000.00.
2. SUBSTITUTING FOR PARAGRAPH 7 OF THE ORDERS AN ORDER THAT THE RESPONDENTS PAY ONE-THIRD OF THE APPELLANTS' TAXED COSTS OF THE APPEAL (INCLUDING ANY RESERVED COSTS AND THE COSTS OF THE FURTHER SUBMISSIONS).
3. FURTHER ORDERING THAT EACH OF THE RESPONDENTS PAY TO THE APPELLANTS INTEREST AT THE RATE OF 8% PER ANNUM COMPOUNDED MONTHLY ON THE AMOUNT OF $15,202,295.08 FROM 27 MARCH 1992 TO THE DATE OF PAYMENT OF THAT AMOUNT TOGETHER WITH THE SAID INTEREST.
OTHERWISE, THE ORDERS PRONOUNCED ON 24 MARCH 1993 STAND.
________________________________________________________________
| CATCHWORDS: | APPEAL AND NEW TRIAL - DAMAGES AND INTEREST - Judgment sum reduced on appeal - Appellant satisfied judgment debt before appeal - Whether entitled to interest on overpayment - Appropriato rate of interest - Appellant claimed foreign exchange losses - Whether recoverable |
| Counsel: | D.F. Jackson Q.C. with him W. Sofronoff Q.C., G. Newton and S. Doyle for the Appellant P.A. Keane Q.C. with him H. Fraser for the Respondents, Pacific Coal Pty Ltd and CRA Limited J.D. Muir Q.C. with him B. O'Donnell for the Respondents, Agipcoal Australia Pty Ltd and Ente Nazionale Idrocarburi |
| Solicitors: | Baker Mackenzie for the Appellants Minter Ellison Morris Fletcher for the Respondents, Pacific Coal Pty Ltd and CRA Limited McCullough Robertson for the Respndents, Agipcoal Australia Pty Ltd and Ente Nazionale Idrocarburi |
| Hearing Date(s): | 17-21, 27, 28, 31 August 1992 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
| Before | The President Mr Justice Pincus Mr Justice Davies |
[Idemitsu Queensland & Ors. v. Agipcoal Australia & Ors.]
Appeal No. 38 of 1992.
BETWEEN:
IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
Appeal No. 39 of 1992
BETWEEN:
IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 43 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL
(AUSTRALIA) PTY LTD
Appellant
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 44 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL
(AUSTRALIA) PTY LTD
Appellant
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 21/12/93
I have had the advantage of reading the reasons of the President which set out the relevant facts.
Judgment was given against the appellants in damages in the Supreme Court of Queensland in Australian dollars. The judgments were paid in the same currency. On appeal, the judgments were partially reversed, giving rise to a right in the appellants to repayment of the difference between the amount of the original judgments and the reduced sum fixed on appeal. There is no dispute about the currency in which the appellants are to be repaid; their right is to repayment in Australian dollars. The question is whether the amount to be repaid should be increased so as to reflect the declining value of the Australian dollar against the Japanese yen between the date of the payments by the appellants and the date of repayment.
Between those dates the value of the Australian dollar changed in relation to foreign currencies generally - favourably as to some, unfavourably as to others. The reason why the appellants say the repayment should reflect the change in value of the Australian dollar against the yen between relevant dates is that to repay moneys borrowed (in Australian dollars) to satisfy the judgment one of the appellants used yen it owned to buy the appropriate amount of Australian dollars. The Australian dollar loan was very short term; it was current for six days only, and the case should be regarded as equivalent to one in which a judgment debtor, in respect of an Australian dollar judgment, has used a foreign currency to buy Australian dollars to satisfy the judgment.
It is convenient, and as it seems to me, not unjust to the appellants to treat each of them as having the same rights as the other, although the money for payment of the judgments came from one of them only.
The use of funds held in yen to meet the obligations created by the judgments is said to have caused the appellants a loss because of changes in the relative values of the two currencies between the date of payment and the date of repayment. That was not a necessary consequence of use of funds held in Japanese yen to pay the judgments.
Before the funds were used in that way the appellants held a certain part of their assets in the form of money, yen. The loss of that money did not necessarily lose the appellants the advantage which would have flowed from the appreciation of the yen against other currencies, had the sum continued to be held. It was presumably open to the appellants to enter into hedging contracts or otherwise adjust their asset holdings so as to restore their former position, which was that they stood to gain, in relation to the cash held in yen, if the yen appreciated; apart from that, they may have used the cash for another purpose. Speaking generally rather than with particular reference to this case, the task of analysing the net effect of use by a substantial company of money held in a foreign currency to pay an Australian obligation might be quite complex. One should not assume that the immediate effect of use of the funds held in a foreign currency is all that needs to be examined.
But in the present case one should proceed on the basis that the unchallenged figures of exchange losses, derived by comparing the value in yen of what was initially paid with the value in yen of what has been repaid, truly represent the net effect on the appellant's financial position of the payment and repayment. The question is whether those losses should be recoverable.
In general, if because of a change in the value of our currency it becomes more, or less, expensive to pay an Australian dollar obligation, Australian law takes no notice of that. Holmes J in Die Deutsche Bank Filiale Nürnberg v. Humphrey (1926) 272 U.S. 517 said:
"Obviously...a dollar or a mark may have different values at different times but to the law that establishes it it is always the same".
This is sometimes referred to as the nominalist principle, regarded as stemming, in English law, from The Case of Mixed Money in Ireland (Gilbert v. Brett) (1604) 2 State Trials 114. A more recent application of the principle is to be found in the reasons of Scrutton LJ in The Baarn [1933] P 251 at 265:
"I take it that if a tort had been committed in England before England went off the gold standard, the plaintiffs could not say: 'We insist, after England has gone off the gold standard and the pound has depreciated in international purchasing power, on being paid the value of the gold standard pound at the time of the commission of the tort'. A pound in England is a pound whatever its international value".
A similar sentiment was expressed by Wilberforce LJ in the House of Lords in Miliangos v George Frank (Textiles) Ltd (1976) A.C. 443 at 466 dealing with a debt due in Swiss francs: "The creditor has no concern with pounds sterling:
for him what matters is that a Swiss franc for good or ill should remain a Swiss franc", citing the reasons of Holmes J in Deutsche Bank v Humphrey, referred to above, as representing substantially the same reasoning. Miliangos was concerned with a claim by a Swiss company for money due under a contract for the sale of yarn. The yarn had been delivered to the English buyers under invoices which stated the price in Swiss francs, payment to be made to a Swiss bank. The Swiss plaintiff originally sued for the debt in the pound sterling equivalent of the amount due under the contract at the dates when payment should have been made.
However, between the date of issue of the writ and the date of the hearing of the action, the pound sterling fell in value against the Swiss franc, resulting in the contract price in pound sterling being much larger than it had been at the time of the breach. At the hearing, the plaintiff obtained leave to amend the statement of claim to claim the amount due to him in Swiss francs. Lord Wilberforce was of the opinion that justice demanded that the creditor should not suffer from fluctuations in the value of sterling, as his contract "has nothing to do with sterling"; he had bargained for his own currency and only his own currency.
Lord Simon of Glaisdale dissented, asking "Are we to apply an iron law nominalism as if it were a law of nature?" (at 489).
It appears that, in general, the currency in which money has to be paid is determined by reference to the characteristics of the transaction or matter giving rise to the obligation. For example, in obligations arising out of contract the currency in which payment is to be made depends on the construction of the contract, considered against the background of the place at which the contract was made, the residence of the parties and matters of that kind: De Bueger v. J Ballantyne & Company Limited [1938] A.C. 452 at 461. In general, the currency in which a loan is to be repaid is that in which it was made: British Bank for
Foreign Trade Ltd v. Russian Commercial and Industrial Bank
(1921) 38 T.L.R. at 65, explained in Pyrmont Limited v. Schott [1939] A.C. 145 at 158. Another factor is the place of payment stipulated in a document such as a debenture bond: Auckland Corporation v Alliance Assurance Co Ltd [1937] A.C. 587. The currency of that place so stipulated will often become the currency of payment due under the document.
Here, the obligation to repay the appellants arose out of the appellants having paid an Australian dollar obligation arising under an Australian judgment in respect of Australian transactions. It seems clear that the obligation consequent upon the judgment given on appeal was to repay in Australian dollars and that was fulfilled. It would be contrary to principle to require the obligor to increase the amount of repayment to take account of the change in the value of the currency in which repayment was being made, as against a foreign currency.
For the above reasons, I agree with the conclusions of the President and Davies J.A. that the respondents should not be liable to reimburse the appellants for the exchange losses suffered by them between the date of the payment of the judgment sum below by Idemitsu and the dates of repayment of the excess amounts by the respondents.
Interest
The appellants Idemitsu claim that the repayments of principal and interest which have been made to it by the respondents in accordance with the orders of this Court are less than the amounts to which they are entitled. In effect, they claim that they should be entitled to 12% interest on the amounts of the overpayments, as 12% was the rate applied by the Court of Appeal and the trial judge to the judgment sum payable by Idemitsu. The respondents contest this submission, arguing that the rate of interest should be limited to the rates earned by them on the overpayments, or in any event that a rate less than 12% should be adopted.
It is clear that the appellants are entitled to repayment of the difference between the judgment sum paid pursuant to the order of the court below, and the reduced amount of damages awarded pursuant to the orders of this Court on 24 March 1993, with interest on the amount of repayments from the date of payment of the original sum until the date of repayment: Rodger v The Comptoir D'Escompte de Paris (1871) LR 3 PC 465 at 475-7, Merchant Banking Co. v Maud (1874) 18 L.R.Eq 659, The Commonwealth v McCormack (1984) 155 CLR 273 at 276.
In Jefford v Gee [1970] 2 Q.B. 130 at 148 Lord Denning MR rebutted the suggestion that "in principle, the rate of interest on a debt or damages before judgment should be the same as the rate after judgment", it being submitted that it would be anomalous if a defendant paid less interest after judgment than before it. Lord Denning thought this reasoning might be acceptable if the rate of interest on a judgment debt were a realistic rate, but he found the rate of four percent (as it then was) to be an unrealistic one, and that a realistic rate should be awarded, even if it resulted in an anomaly.
In this case, to award 12 percent simple interest on the amount of the overpayment would result in interest being given at an unrealistic rate. At the relevant times (between 27 March 1992 and April 1993) interest rates obtainable varied from 7% per annum in March 1992 down to 4.85% in April 1993, on fixed deposits of $5 000 to $100, 000 for one month (Reserve Bank of Australia Bulletin April 1993 and November 1993). These rates are substantially lower than those obtainable on similar terms at June 1989 (12%), June 1990 (13.25%) and June 1991 (9.25%). The overnight official cash rates issued by the Reserve Bank of Australia dropped from 17% on 23 January 1990 to 4.75% on 30 July 1993.
When the judgment of the Full Court was delivered in Serisier Investments Pty Limited v English [1989] 1 Qd.R. 678, a rate of 12%, determined to be "a median figure which represents a perception of commercial rates" (at 681), was not an unrealistic rate, but one which reflected the high rates generally prevailing in the relevant period, from 1981 to 1988.
Evidence was submitted to the Court on behalf of Agipcoal Australia Pty Ltd as to interest rates payable on a 90 day bank bill rate. The rate varied from 7.6% monthly at the end of March 1992 down to 5.3% monthly in mid-April 1993. Agipcoal did in fact invest at least part of the overpayment at comparable rates during the relevant period, utilising a 30 day bank bill facility with Citibank.
Pacific Coal deposited the amount of their overpayment with CRA Finance Pty Ltd, an account which was credited with interest at daily market interest rates, compounded monthly.
There is evidence adduced by Pacific Coal of the rates
which Pacific Coal obtained on their deposit of $29.5M with
CRA Finance Pty Ltd from 27 March 1992 to 7 April 1993, when
repayment of $13, 780, 000.00 was made to Idemitsu, as
falling from 7.4714% in March 1992 down to 5.0358% in April
1993, further dropping down to 4.9702% in May 1993.
Accepting that any interest received was compounded (in the
case of Pacific Coal), an award of 12% simple interest would
be considerably higher than the average interest rates
obtainable, from March 1992 to April 1993.
As the judgment is in Australian dollars, it is appropriate that Australian interest rates be used. Indeed, on the evidence it appears that the relevant Japanese interest rates at the time were even lower than the Australian rates - the relevant rates varying down from 4.79% at the end of March 1992 to 3.09% in mid-April 1993.
I agree with the view of the President that interest on the repayments to Idemitsu should be calculated at 8% compounded on monthly rests.
I agree with the orders proposed by the President including those with respect to costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
Before The President
Mr Justice Pincus Mr Justice Davies
[Idemitsu Queensland & ors. v. Agipcoal Australia & ors.]
Appeal No. 38 of 1992
BETWEEN: IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
Appeal No. 39 of 1992
BETWEEN: IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 43 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL (AUSTRALIA)
PTY LTD
Appellant
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 44 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL (AUSTRALIA)
PTY LTD
Appellant
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
REASONS FOR JUDGMENT - DAVIES J.A.
Judgment delivered 21/12/1993
The judgment of this Court on 24 March this year in each of appeals nos. 38 and 39 of 1992 relevantly:
1. reduced the amount of the judgment below in favour of each of the respondents from $29,500,000 to $15,720,000;
2. ordered that the respondents pay the appellant's taxed costs of the appeal limited to four days' hearing; and
3. gave the parties liberty to apply.
In these reasons, except where otherwise indicated, "the appellant" means Idemitsu Queensland Pty Ltd, Idemitsu Kosan Co. Ltd and Bligh Coal Limited, and "the respondents" means Pacific Coal Pty Ltd and Agipcoal Australia Pty Ltd.
The sum of $29,500,000 had included interest of $4,500,000 calculated at the rate of 12% per annum. The sum of $15,720,000 included interest of $3,720,000 calculated at the same rate up to the date of the above judgment.
However, the appellant had satisfied the judgment below on 27 March 1992 by payment of $29,500,000 to each of the respondents. It is therefore common ground that the respondents should have been awarded interest only up to that date and that the amount for which judgment should have been given in each appeal is $14,297,704.92, $2,297,704.92 of which is interest up to the date of payment at 12%. It will therefore be necessary to alter the judgment accordingly. It follows that the appellant had overpaid each of the respondents by $15,202,295.08. This was also common ground and each of the respondents has repaid this sum, together with some interest, to the appellant.
Two further matters were the subject of written submissions made after judgment. The first was a claim by the appellant for three amounts: part of the cost of obtaining a standby letter of credit to enable it to pay the whole of the judgment debt on 27 March 1992, the loss which it sustained on the amount overpaid because of an increase in value in the Japanese Yen against the Australian Dollar between that date and the respective dates of repayment of the overpayment, and interest on that amount over the whole of that period at 12% because the respondents had the use of the money overpaid. The second involves the costs of the appeal.
The judgment below was given on 21 February 1992. On 25 March 1992 the appellant applied to the trial judge for a stay of execution pending appeal. One of the grounds of that application was that, in order to meet the judgment, the appellant would need to convert Japanese Yen into Australian Dollars and that, in order to do so, it would incur expense and the risk of an adverse currency movement.
The application was refused. His Honour, in dealing with
this ground, said:
"Moreover, it appears from the judgment of the High Court in Commonwealth v. McCormack (1984) 155 C.L.R. 273 at page 276 that if the applicants are successful on the appeal they will be able to recover all moneys paid in satisfying the judgment which is set aside. It was said that:
'Restitutio in integrum is the right of every successful appellant, and that an appellant who has satisfied a judgment for the payment of money is entitled on the reversal of the judgment to repayment of the money paid by him with interest.' "
The method adopted by the appellant to make the payment was as follows. On 26 March it applied to the Ministry of Finance (Japan) for permission to remit to Australia $59,000,000 to satisfy the judgment debt, that permission being a condition precedent to such remission. That permission was granted on 31 March. Because it had not been granted by 27 March the appellant put in place a short term arrangement whereby it opened a standby letter of credit with the Bank of Tokyo in Tokyo in favour of that bank in Australia to enable the appellant to borrow from the Australian bank $59,000,000. It borrowed that money on that day and paid it to the respondents. The fee charged for that letter of credit was ¥337,964 which converted at the then current exchange rate to $3,232.87. Then, on 2 April 1992, the appellant, using its own internal funds, bought $59,000,000 from the Bank of Tokyo and used that money to repay the amount it had borrowed on 27 March.
The appellant gave uncontradicted evidence that the cost of the standby facility was in proportion to the amount borrowed. Consequently, it said that the amount of $1,566.88 was the proportion of the amount paid attributable to the amount overpaid. This was the first of the amounts claimed by the appellant.
During the period between 27 March 1992 and the dates of repayment, the Japanese Yen rose substantially in value against the Australian Dollar. On 27 March 1992 the rate of exchange was ¥104.54 for each $A1. On 7 April 1993 Pacific repaid the appellant $13,780,000. On the following day the appellant converted this sum to Japanese Yen at the then current exchange rate of ¥80.07 to $A1, thereby suffering an exchange loss on that sum of $3,992,706.38. On 14 April 1993 Agipcoal repaid the appellant $13,780,000 and on the following day the appellant converted that sum to Japanese Yen at the then current exchange rate of ¥81.74 to $A1, thereby suffering an exchange loss of $3,629,598.72.
Leaving aside the exchange losses, these repayments left a shortfall and on 9 June 1993 and 15 June 1993 Pacific and Agipcoal each respectively repaid a further sum of $2,396,853.86. In view of the opinion which I have reached, it is unnecessary to calculate the further exchange loss incurred in remitting these sums to Japan. However it was the total of these losses which was the second amount claimed by the appellant.
The third of the amounts claimed by the appellant was, as I have said, interest at 12% on the amount of the overpayment, or the balance thereof, from 27 March 1992 until the dates of repayment. That was the rate at which the learned trial judge had awarded interest of $4.5 million. As mentioned in the joint judgment on appeal, no point was taken in the notice of appeal about the allowance of interest. Nor indeed was any point taken about it in the course of argument on appeal. Consequently this Court allowed interest at the same rate on the reduced amount of damages.
However, the affidavit material filed by both sides shows that, during the period in which the respondents had the use of the appellant's money, both the interest which the appellant could have earned on that money and the interest which the respondents in fact earned or saved in consequence of having the use of that money, was substantially less than 12%. Each of the respondents contended that the appropriate rate of interest was the rate at which interest had accrued to them from the use of the moneys. It is convenient to defer consideration of those rates and, if they are different, the rates at which the appellant could have earned on that money, until after consideration of the principles which should be applied by an appellate court where it has reversed a decision of a trial court and, in the meantime, the successful appellant has satisfied the judgment below and thereby suffered loss; and the application of those principles to each of the amounts claimed.
Rodger v. Comptoir D'Escompte de Paris (1871) L.R. 3 P.C. 465 is the authority most often cited in this context. In that case, in an action in trover in the Supreme Court of Hong Kong, the plaintiffs had recovered approximately $56,000 as principal and approximately $6,000 as interest, together with costs. Notwithstanding the pendency of an appeal to the Privy Council, the plaintiffs executed and were paid the judgment sum. On appeal, the Privy Council ordered that the judgment be reversed and that a non-suit be entered. It said nothing about repayment of the money paid or interest thereon. However relevant regulations provided that the Supreme Court should execute and carry into effect any such order. The Supreme Court, when the matter returned to it, ordered restitution of the principal sum, interest and costs, but held that it did not have the power to order payment of interest on the amount paid in consequence of its earlier judgment. In the appeal against that decision, their Lordships said, at p. 475:
"Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court or of an intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those
Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
Their Lordships went on to say that, if the defendants could not receive interest on the money paid on the judgment of the Supreme Court, a very grave injury would be done to them because:
"They will recover that sum after the lapse of a considerable time, but they will recover it without the ordinary fruits which are derived from the enjoyment of money. On the other hand, those fruits will have been enjoyed, or may have been enjoyed, by the person who by mistake and by wrong obtained possession of the money under a judgment which has been reversed."
Thus the injustice was not merely that, in consequence of a wrong decision, the defendants had lost the use of their money, but also that the plaintiffs, in consequence of that decision, had obtained it. That injustice, they said, justified ordering that interest be paid on the whole of the amount of $62,000.
The substance of the first passage quoted from Rodger was cited with approval by the Privy Council in Jai Berham v. Kedar Nath Marwari (1922) L.R. 49 Ind. App. 351 at 355-6.
Their Lordships said that the duty of the Court to place the parties in the position which they would have occupied, but for such decree or such part thereof as had been varied or reversed, was inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances toward all parties involved. This passage in their Lordships' judgment was cited with approval, as was the first quoted passage from Rodger, in Heavener v. Loomes (1924) 34 C.L.R. 306, by Isaacs and Rich JJ. at 323-4. In Heavener the appellant had failed in the court below to restrain the respondent mortgagee from receiving the mortgage debt from the mortgagor and to restrain the mortgagor from paying that debt to the mortgagee on the ground that the appellant had become subrogated to the mortgagee's debt. Before the appeal was decided, the mortgagor had paid the debt to the mortgagee. In deciding that the injunction should have been granted, their Honours would have ordered the respondent to bring the money so received into court.
In Central Electricity Board v. Bata Shoe Co. Ltd [1983] A.C. 105, the Privy Council, referring to Rodger, described the general principle as "founded on the need to do, so far as possible, complete justice between the parties": at 108.
They ordered that the unsuccessful defendant appellant pay interest from the date of the judgment against it below notwithstanding an agreement between the parties, in effect, for a stay pending appeal. The phrase "so far as possible", in my view, recognises the difficulty at an appellate level of always achieving perfect justice between the parties and, perhaps also, the undesirability at that level of embarking upon a trial on contentious facts in order to do so.
In The Commonwealth v. McCormack (1984) 155 C.L.R. 272, the High Court affirmed a decision of the Full Court of the Federal Court which reversed a judgment for $75,000 in favour of a plaintiff. On later ascertaining that the amount had been paid, it ordered repayment citing, amongst other references, the first quoted passage from Rodger for the proposition that an appellant who has satisfied a judgment for the payment of money is entitled, on the reversal of the judgment, to repayment of the money paid by him with interest. They also cited with approval the statement of Lord Field in Cox v. Hakes (1890) 15 App. Cas. 506 at 547 that "Restitutio in integrum is the right of every successful
appellant." Lord Field had relied on Rodger as authority
for that proposition.
Interest on the amount overpaid plainly falls within the principle stated and applied in those cases. The appellant is entitled to interest, the only question being the rate thereof, a question to which I shall return later. In considering whether the other claims also come within that principle, it may be accepted that the appellant was reasonable in not attempting to satisfy the judgment until after its application for a stay failed, and that it was reasonable in not appealing against the refusal of a stay.
It may also be accepted that, in order to satisfy the judgment, it was reasonable to pay the debt from its own funds and consequently to convert Japanese Yen into Australian Dollars; and that, because of the delay in obtaining approval to remit money to Australia, it was reasonable to obtain the letter of credit to ensure prompt payment. It may also be accepted that both the expenses incurred by the appellant in obtaining the loan and the exchange loss were foreseeable by the respondents.
Restitutio in integrum in tort or contract is limited only by the rules as to remoteness of damage and the plaintiff's duty to mitigate his loss: Hungerfords v. Walker (1989) 171 C.L.R. 125 at 143. But the essential difference between those cases and this is that, in the former, a wrongful act or omission of the defendant causes the plaintiff loss, whereas in the latter it is the judgment of the court which does so. Notions of fairness or justice do not require such complete restitution in the latter as in the former case.
And, in my view, where, as here, the expense and loss are indirect in the same way as, for example, the expense and loss on sale of an asset to meet the judgment, and the respondents have obtained no advantage from the appellant's expense or loss, I do not think that justice requires that the appellant be compensated for them.
It is unnecessary to consider whether, where the judgment of a primary court depriving an appellant of assets, or control of assets, is reversed, the appellant should be compensated for depreciation in the value of those assets caused by that judgment: National Australia Bank Ltd v. Bond Holdings Ltd [1991] 1 V.R. 386. That is not this case. However, I would not accept, as may have been accepted by one of the members of the Full Court in that case (at 597), that where a judgment is reversed on appeal the successful appellant's rights are, in every case (except, of course, cases of fraud, conspiracy, malicious prosecution or similar conduct), limited to having restored to him what has been taken from him by the judgment below together with any actual or deemed "fruits" thereof.
As to the rate of interest on the amount of the overpayment, the rate of 12% was fixed by the learned trial judge in the absence of evidence of the existing market rate. In these proceedings both respondents adduced evidence of the actual rates of interest earned or paid during the relevant period which was, of course, after the time at which his Honour had fixed that rate at 12% and when interest rates were lower.
This evidence revealed that the respondent Pacific Coal had invested the amount overpaid to it at rates which ranged between approximately 7.5% and 4.7% per annum compounded monthly. The evidence concerning the rates earned by the respondent Agipcoal on the amount overpaid to it is less clear. However, it seems that in the period between 30 March 1992 and 14 April 1993, initially all and subsequently at least some of the amount overpaid to Agipcoal was invested at rates which varied between approximately 7.5% and 5.6% per annum compounded monthly. In addition, after September 1992 Agipcoal was apparently deriving a further benefit by using some of the amount overpaid (together with interest accrued thereon) to fund its business operations.
The evidence suggested that had access to these funds been
unavailable, Agipcoal would have had to borrow an equivalent
amount at 10% per annum compounded monthly.
Based on the above evidence, and in light of the fact that
there could still be considerable difficulties in
calculating the precise benefits derived by each of the
respondents (in particular Agipcoal), I would conclude that
it is appropriate that the appellant receive interest on the
amount overpaid to the respondents at the rate of 8% per
annum compounded monthly. This rate is adequate to remove
any possibility of the respondents deriving a greater actual
benefit from the overpayments than the appellant is entitled
to recover by way of interest.
On the question of costs, I have read in draft the reasons of the President with which I agree.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Brisbane
[Idemitsu Queensland & ors. v. Agipcoal Australia & ors.]
Appeal No. 38 of 1992
BETWEEN: IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
Appeal No. 39 of 1992
BETWEEN: IDEMITSU QUEENSLAND PTY LTD & ORS
Appellants
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 43 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL (AUSTRALIA)
PTY LTD
Appellant
AND:
PACIFIC COAL PTY LTD & ORS
Respondents
Appeal No. 44 of 1992
BETWEEN:
LUCKY - GOLDSTAR INTERNATIONAL (AUSTRALIA)
PTY LTD
Appellant
AND:
AGIPCOAL AUSTRALIA PTY LTD & ORS
Respondents
______________________________________________________________
___
THE PRESIDENT
PINCUS J.A. DAVIES J.A.
______________________________________________________________
___
Judgment delivered 21/12/1993
SEPARATE REASONS FOR JUDGMENT OF THE PRESIDENT, PINCUS AND
DAVIES JJ.A., ALL AGREEING AS TO THE ORDERS TO BE MADE.
______________________________________________________________
___
VARY THE ORDERS OF THIS COURT PRONOUNCED ON 24 MARCH 1993 IN
APPEAL NOS. 38 AND 39 OF 1992 BY:
1. SUBSTITUTING THE FIGURE OF $14,297,704.92 FOR THE FIGURE OF $15,720,000.00.
2. SUBSTITUTING FOR PARAGRAPH 7 OF THE ORDERS AN ORDER THAT THE RESPONDENTS PAY ONE-THIRD OF THE APPELLANTS' TAXED COSTS OF THE APPEAL (INCLUDING ANY RESERVED COSTS AND THE COSTS OF THE FURTHER SUBMISSIONS).
3. FURTHER ORDERING THAT EACH OF THE RESPONDENTS PAY TO THE APPELLANTS INTEREST AT THE RATE OF 8% PER ANNUM COMPOUNDED MONTHLY ON THE AMOUNT OF $15,202,295.08 FROM 27 MARCH 1992 TO THE DATE OF REPAYMENT OF THAT AMOUNT TOGETHER WITH THE SAID INTEREST.
OTHERWISE, THE ORDERS PRONOUNCED ON 24 MARCH 1993 STAND.
______________________________________________________________
___
CATCHWORDS: | APPEAL AND NEW TRIAL - DAMAGES AND INTEREST - Judgment sum reduced on appeal - Appellant satisfied judgment debt before appeal - Whether entitled to interest on overpayment - Appropriate rate of interest - Appellant claimed foreign exchange losses - Whether recoverable |
| Counsel: | D.F. Jackson Q.C. with him W. Sofronoff Q.C., G Newton and S. Doyle for the Appellant P.A. Keane Q.C. with him H. Fraser for the Respondents, Pacific Coal Pty Ltd and CRA Limited J.D. Muir Q.C. with him B. O'Donnell for the Respondents, Agipcoal Australia Pty Ltd and Ente Nazionale Idrocarburi |
| Solicitors: | Baker Mackenzie for the Appellants Minter Ellison Morris Fletcher for the Respondents, Pacific Coal Pty Ltd and CRA Limited McCullough Robertson for the Respndents, Agipcoal Australia Pty Ltd and Ente Nazionale Idrocarburi |
| Hearing Date(s): | 17-21, 27, 28, 31 August 1992 |
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