Love v Chidley (No 2) No. DCCIV-98-1322

[2002] SADC 47

Mary Elizabeth Love
v  Rex Adrian Chidley (No. 2)
[2002] SADC 47

Civil - extempore
Judge David Smith

1. In this action I have assessed the financial circumstances of the parties and come to a conclusion as to the plaintiff’s entitlement to an order under s10 of the De Facto Relationships Act, 1996 as at the time of hearing which was April 2001; (see Evans v Marmont (1997) 21 Fam LR 760 at 764; Parker v Parker (1993) 16 Fam LR 863 at 875). However, the final order for the payment of a lump sum was made approximately a year after the hearing on the 12^th April 2002.

2. Accordingly, it is my view that the plaintiff is entitled to interest on the sum of $450,000 for that year pursuant to s39 of the District Court Act; (see Germinario v Pinkerton (No. 2) [2000] SADC 92). The plaintiff’s entitlement to interest is based upon the fact that the defendant has had the benefit of that money or its asset equivalent for that time and the plaintiff deprived of it.

3. Because the order I have made is in the nature of an economic entitlement, or put another way it is what in ideal circumstances the plaintiff should have left the relationship with in terms of a share of the property, the appropriate interest rate is the prevailing interest on short term commercial bill finance.  Such rates are found in the Third Schedule to the Supreme Court Rules and in this case was 6% per annum.

4. I emphasise that the position will necessarily be different where actual property is the subject of an order and it may be that in such cases no order for interest will be made as the party taking property pursuant to an order will take it, whether it has, since the time of hearing, appreciated or depreciated.  It is of course not necessary for me to decide that in the circumstances of this case.

5. Accordingly, I fix a lump sum of $27,000 for interest.