Millbrook v Davies (No 2)

[2004] SADC 92

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

MILLBROOK v DAVIES (No 2)

Judgment of His Honour Judge Smith

21 June 2004

INTEREST - RECOVERABILITY OF INTEREST

Plaintiff claims post-judgment interest - judgment award paid to plaintiff 42 days after judgment - no order made in judgment to allow for post-judgment interest - order that plaintiff entitled to recover from defendant post-judgment interest pursuant to s40 of the District Court Act, namely $2,415.00

Social Security Act 1991 s1184B; Health and Other Services (Compensation) Act 1995 s30; District Court Act s39, s40, referred to.
Sluiter v Keimeier (1969) 54 LSJS 641); Wheeler v Page (1982) 31 SASR 1 , considered.

MILLBROOK v DAVIES (No 2)
[2004] SADC 92

CIVIL
JUDGE DAVID SMITH

1. On 6 May 2004 when I delivered judgment in this matter, which included pre-judgment interest, under s39 of the District Court Act, I did not make an order or direction under s40 of the District Court Act as to the running of post-judgment interest on the judgment sum.

2. The judgment debt in this matter was not paid, I am told, until 17 June 2004 because of the defendant’s obligation to comply with the Commonwealth legislation applicable, in particular, s1184B of the Social Security Act 1991 and s30 of the Health and Other Services (Compensation ) Act 1995.

3. In my view, notwithstanding the obligation to withhold payment of the judgment monies until there is compliance with the Commonwealth legislation, the defendant remains liable to pay interest on the judgment debt for the period after the giving of judgment until the payment of the judgment sum (see Sluiter v Keimeier (1969) 54 LSJS 641). I would suggest that the rate of interest is conveniently determined by the third schedule of the Supreme Court rules. I do not consider that there is any inconsistency between s40 of the District Court Act and the Commonwealth legislation in this respect.  It is not a punitive provision.  The defendant is holding the plaintiff’s money.  She is deprived of the use of it and on that basis is entitled to interest on it on the same basis as pre‑judgment interest is awarded (see Wheeler v Page (1982) 31 SASR 1 per King CJ at 3).

4. In my view, interest is payable as contended. I indicate the plaintiff is entitled to post-judgment interest pursuant to s40 of the District Court Act for the period from the date of my judgment, namely the 6^th May 2004 until the time the judgment sum was actually paid, namely 17^th June 2004 at the rate indicated in the Third Schedule to the Supreme Court Rules, and that though I leave the final calculation to counsel for the parties I am told and I accept that the proper amount is $2,415.00 being the sum resulting from the calculation of 6% on $349,791.27 for a period of 42 days.