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

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

Case [2002] SADC 47

De Facto Relationships Act, 1996

Interest on Financial Entitlements

Lump Sum Payment

Family Law

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Mary Elizabeth Love
v Rex Adrian Chidley (No. 2)
[2002] SADC 47
Civil - extempore
Judge David Smith

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

Details

AGLC: Love v Chidley (No 2) No. DCCIV-98-1322 [2002] SADC 47
Case: [2002] SADC 47
Decision Date: 26 April 2002

CaseChat Overview and Summary

In the case of Love v Chidley (No 2) No. DCCIV-98-1322, the plaintiff, Mary Elizabeth Love, sought a financial order against the defendant, Rex Adrian Chidley, following the dissolution of their de facto relationship. The matter was heard and determined by Judge David Smith in the South Australian District Court. The primary dispute centred around the financial circumstances of the parties and the plaintiff's entitlement to a financial order under section 10 of the De Facto Relationships Act, 1996.

The legal issues before the court included determining the appropriate interest rate for the period between the hearing and the final order for payment of a lump sum, as well as the basis upon which the plaintiff's entitlement to interest should be calculated. The court had to decide whether the plaintiff was entitled to interest on the sum of $450,000, which the defendant had the benefit of for approximately a year, and if so, at what rate. The judge considered the principles established in previous cases such as Evans v Marmont and Germinario v Pinkerton (No. 2) to reach a decision.

The court held that the plaintiff was indeed entitled to interest on the sum of $450,000 for the period between the hearing and the final order, due to the defendant's benefit from the funds during this time. The appropriate interest rate was determined to be 6% per annum, which is the prevailing interest rate on short term commercial bill finance as per the Third Schedule to the Supreme Court Rules. The court emphasised that this situation might differ in cases where actual property is the subject of an order. Consequently, the court ordered the defendant to pay the plaintiff a lump sum of $27,000 as interest.

Orders