Jalmoon Pty Ltd (in liq) v Bow

[1997] QCA 271

IN THE COURT OF APPEAL	[1997] QCA 271
SUPREME COURT OF QUEENSLAND

Appeal No. 49 of 1995.

Brisbane
[Jalmoon P/L (in Liq.) v. Bow]

BETWEEN:

JALMOON PTY LTD (IN LIQUIDATION)

(Plaintiff) Appellant

AND:

KEITH ROBERT BOW

(Defendant) Respondent

___________________________________________________________________

Pincus J.A. Ambrose J. Helman J.

___________________________________________________________________________

Judgment delivered 13 December 1996

Further Order delivered 5 September 1997

Reasons for Further Order of the Court

___________________________________________________________________________

JUDGMENT FOR $108,905.00 GIVEN ON 13 DECEMBER 1996 REPLACED BY
ONE FOR $222,977.76 WITH COSTS HERE AND BELOW.
___________________________________________________________________________

CATCHWORDS: INTEREST - whether compound interest should be awarded - whether interest to be reduced because delay in obtaining judgment was fault of appellant - whether interest to be awarded up to date of Appellate Court judgment.

Counsel:	Mr R Bain Q.C. for the appellant. Mr J McKenna for the respondent.
Solicitors:	Stephens & Tozer for the appellant Allen Allen & Hemsley (formerly Feez Ruthning) for the respondent.
Hearing date:	14 July 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 49 of 1995.

Brisbane

Before Pincus J.A.
Ambrose J.

Helman J.

[Jalmoon P/L (in Liq.) v. Bow]

BETWEEN:

JALMOON PTY LTD (IN LIQUIDATION)

(Plaintiff) Appellant

AND:

KEITH ROBERT BOW

(Defendant) Respondent

REASONS FOR FURTHER ORDER - THE COURT

Judgment delivered 13 December 1996
Further Order delivered 5 September 1997

Judgment in this matter was delivered on 13 December 1996 and the parties were invited to make submissions with respect to interest. These were delivered rather belatedly, but it seems desirable to deal with the problem raised; it is not intended to repeat the explanation of the nature of the case included in our previous reasons.

The appellant’s contention is that compound interest should be awarded, but this is entirely in the discretion of the Court: Jacobs’ Law of Trusts in Australia, 6th Ed., p. 667. The present does not appear to us to be a case in which such an award would be appropriate; there was no suggestion of dishonest conduct on the part of the respondent, nor did the respondent in any way profit from the breaches he committed.

The parties are agreed on 12% as the proper rate of interest and the question is to what extent the period for which interest should be allowed must suffer a reduction. The respondent’s contention is that interest should be allowed for only 2.9 years, whereas the appellant claims interest for a period in excess of 12 years. The difference between the two is essentially that the respondent contends that all but 2.9 years of the delay in obtaining judgment was the fault of the appellant. We have no formal evidence before us as to the cause of the delay, but the parties have made assertions and counter-assertions on this subject; since neither side objected to this course, it appears that we should take these assertions into account.

It is conceded by the appellant that the then liquidator, a Mr Bubke, discovered the possibility of the relevant cause of action in June 1986, but proceedings were not begun until 3 years and some months later. There was no doubt some inevitable delay due to Mr Bubke’s death, but it appears to us that a deduction of 3 years from what might otherwise have been the proper period for an allowance of interest should be made, because of the delay in instituting proceedings.

Then the action was held up for over a year, largely because of a dispute about security for costs; having studied such of the correspondence as has been placed before us, we are of the view that no deduction from the period of interest should be made on this account. In December 1990 a letter of indemnity in respect of security for costs was lodged, but the matter was not entered for hearing until September 1994, nearly 4 years later. To some extent the delay was due to negotiations for settlement, but there were other causes: discovery took at least 2 years and there was a further application for security for costs.

A period of about 5 years elapsed from the date of commencement of proceedings, 22 August 1989, to the signing of a certificate of readiness for trial, 5 September 1994. According to the respondent’s contention, blame for about 4½ years of this delay should be laid solely at the appellant’s door. The first period of delay relied on by the respondent is an alleged delay of 12 months in delivering the statement of claim, but that appears to be an error, for we have a copy of a letter dated 8 September 1989 with which the statement of claim was delivered. The next long delay relied on by the respondent is a period of 19 months delay in delivery of the appellant’s affidavit of documents. It is we think common ground that the delay we have mentioned occurred. But there seems to have been at least equal delay on the other side; the appellant required discovery in August 1991 but on 6 May 1993, as appears from a letter bearing that date, it had not been given. Then the respondent relies on 17 months delay from the plaintiff’s discovery to delivery of a certificate of readiness; the copies of correspondence we have show that there is no possibility of holding that this delay was due, in substance, to the appellant’s sole fault. Nevertheless, some further allowance should be made for the appellant’s delay in pursuing the proceedings; we think that it is fair to allow interest for a total of 8 years in respect of the period from the time of the breaches established (early 1985) to the date of judgment in this Court (13 December 1996); that takes into account the whole of the circumstances we have discussed.

It should be mentioned that, in a case in which a plaintiff who has failed below succeeds on appeal, including interest up to the date of the appellate judgment accords with authority: L Shaddock & Associates Proprietary Limited v. The Council of the City of Parramatta (1983) 151 C.L.R. 590, Nicol v. Allyacht Spars Pty Ltd (1988) 165 C.L.R. 306, Rogers v. Brambles Australia Limited (Appeal No. 189 of 1995, judgment 8 November 1996). But the appellant asks for an allowance of interest up to the date of payment. Payment has not, we assume, been made yet. In strictness interest from judgment to payment is governed by s. 48 of the Supreme Court Act 1995, which corresponds to the former s. 73 of the Common Law Practice Act 1867; under s. 48, the rate of interest still appears to be 10%, as fixed by an Order in Council of 13 December 1983. The proper course is to add to the amount for which judgment was previously given, $108,905, interest at 12% up to the date of final judgment. The amount of interest for the 8 years to 13 December 1996 is $104,548.80 and the interest at the same rate to the date of this judgment, of 5 September 1997, is $9,523.96.

The total judgment will, then, be $222,977.76 and our judgment for $108,905, given on 13 December 1996, will be replaced by one for the sum of $222,977.76, with costs here and below.