Practice (Vict.)—Supreme Court—Interest on judgments for debt or damages from commencement of action until entry of judgment—Interest not allowed on amount representing compensation for loss or damage to be incurred or suffered after the date of the award—Lord Campbell's Act—Quality of damages—Whether award of damages under Pt III of Wrongs Act 1958 (Vict.) includes any amount in respect of compensation for loss or damage to be incurred or suffered after date of award—Supreme Court Act 1958 (Vict.), s. 79A.* * Section 79A of the Supreme Court Act 1958 (Vict.) provides, so far as material, as follows: "(1) The Judge upon application shall in all actions for the recovery of debt or damages give damages in the nature of interest at such rate not exceeding eight per centum as he thinks fit from the commencement of the action until the entry of the judgment unless good cause is shown to the contrary over and above the debt or damages awarded by the court or jury. . . . (3) Where the damages awarded by the court or jury include or where the Judge in his absolute discretion determines that the damages as awarded include any amount for - . . . (b) compensation for loss or damage to be incurred or suffered after the date of the award . . . the Judge shall not allow interest in respect of any amount so awarded or in respect of so much of the award as in his opinion represents any such damages . . . "
Decisions
August 21. The following written judgments were delivered :- BARWICK C.J. Section 79A of the Supreme Court Act 1958 (Vict.) (as amended) is in the following terms:
"(1) The Judge upon application shall in all actions for the recovery of debt or damages give damages in the nature of interest at such rate not exceeding eight per centum as he thinks fit from the commencement of the action until the entry of the judgment unless good cause is shown to the contrary over and above the debt or damages awarded by the court or jury.
(2) Nothing in this section shall - (a) authorize the granting of interest upon interest; (b) apply in relation to any sum upon which interest is recoverable as of right by virtue of any agreement or otherwise;
(c) affect the damages recoverable for the dishonour of a negotiable instrument;
(d) authorize the allowance of any interest otherwise than by consent upon any sum for which judgment is pronounced or entered by consent;
(e) apply in relation to any sum on which interest might be awarded by virtue of section seventy-eight or section seventy-nine of this Act; or
(f) limit the operation of any enactment or rule of law which apart from this section provides for the award of interest. (3) Where the damages awarded by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ruby v Marsh [1975] HCA 32
Case
[1975] HCA 32
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Ruby v Marsh*. The dispute concerned the interpretation of a clause in a deed of settlement, specifically whether it imposed a personal obligation on the respondent, Mr. Marsh, to pay a sum of money to the appellant, Mrs. Ruby, or whether it created a charge over certain property.
The central legal issue before the Court was the proper construction of clause 4(a) of the deed of settlement. This clause stipulated that Mr. Marsh would pay Mrs. Ruby a sum of £10,000, and that this sum was to be "a charge upon the said property". The Court had to determine whether this language created a personal covenant by Mr. Marsh to pay the money, or if it merely created a proprietary interest in the property for the benefit of Mrs. Ruby, without imposing a personal liability on Mr. Marsh.
The High Court, by majority, held that the clause created both a personal covenant to pay and a charge over the property. The Court reasoned that the inclusion of the phrase "shall pay" indicated a personal obligation undertaken by Mr. Marsh. The subsequent words "a charge upon the said property" were interpreted as an additional security for that personal obligation, rather than an exclusive remedy. The Court applied principles of contractual interpretation, looking to the ordinary meaning of the words used and the overall context of the deed to ascertain the parties' intentions.
The appeal was allowed, and the orders of the lower court were set aside.