Secure Parking Pty Ltd v Woollahra Municipal Council (No 2) - [2017] NSWCA 51

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Secure Parking Pty Ltd v Woollahra Municipal Council (No 2) [2017] NSWCA 51
Hearing dates: On the papers
Decision date: 21 March 2017
Before: Beazley P; Meagher JA; Ward JA
Decision:
1. Order 4 made on 4 July 2016 be varied as follows:

4. Respondent pay the appellant’s costs of the proceedings before the primary judge on an ordinary basis up to and including 19 December 2014 and on an indemnity basis from 20 December 2014.

2. Order the respondent pay the appellant interest on the costs which are the subject of order 4 made on 4 July 2016 at the rate that is:

(a)   in respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and the rate that is 6% above that cash rate in any year after 2017, and

(b) in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate.

in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of:

(c)   Such time as the respondent has paid the costs due to the appellant under that order 4; or

(d)   Any further order relating to interest on costs in these proceedings.

In this order:

X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before the primary judge;

Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before the primary judge;

The Allowed Percentage equals ((Y/X) x 100)%.

3.   Order the respondent pay the appellant interest on costs and disbursements payable pursuant to order 5 made on 4 July 2016 at the rate of interest which is:

(a)   in respect of the period from 1 January to 30 June – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced in any year up to 2017 and the rate that is 6% above that cash rate in any year after 2017, and

(b)   in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate.

in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of:

(c)   Such time as the respondent has paid the costs due to the appellant under that order 5; or

(d)   Any further order relating to interest on costs in these proceedings.

In this order:

X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before this Court;

Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before this Court;

The Allowed Percentage equals ((Y/X) x 100%).
4. Otherwise dismiss the appellant’s notice of motion filed 11 June 2016.
5. Make no order as to the costs of that notice of motion.
Catchwords:
COSTS – interest on costs – where successful appellant seeks order for interest on costs of proceedings at first instance and on appeal following final judgment – where order for interest on costs at first instance made by primary judge in favour of respondent – where making of that order was not opposed – where not suggested successful appellant’s conduct resulted in delay of prosecution of appeal or that respondent prejudiced by making of application for interest on costs after final orders in appeal – orders made for interest on costs of proceedings at first instance and on appeal
INTEREST – judgments – where payment made by successful appellant to respondent as plaintiff in satisfaction of judgment at first instance which was then reversed on appeal – where that amount repaid by respondent immediately following decision on appeal – where claim by appellant for interest on judgment amount repaid – whether interest should be awarded at pre-judgment rate (Civil Procedure Act 2005 (NSW), s 101) or post-judgment rate (Civil Procedure Act, s 100) – effect of UCPR r 51.19 in circumstances where interest sought in substance pre-judgment interest on an amount claimed by way of restitution – interest awarded at pre-judgment rate
Legislation Cited: Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW)
Civil Procedure Act 2005 (NSW), ss 100, 101
Supreme Court Rules 1970, Sch J
Uniform Civil Procedure Rules 2005 (NSW), rr 6.12(8), 36.7(1), 42.2, 51.19, 51.58,
Cases Cited: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158
DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2) [2014] NSWCA 142
Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331
Galafassi v Kelly (No 2) [2014] NSWCA 239
Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445
Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436; [2013] NSWCA 211
Maestrale v Aspite (No 2) [2014] NSWCA 302
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425
Woollahra Municipal Council v Secure Parking Pty Ltd (No 2) [2015] NSWSC 452
Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72
Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Category: Consequential orders (other than Costs)
Parties: Secure Parking Pty Ltd (Appellant)
Woollahra Municipal Council (Respondent)
Representation:
Counsel:
B W Rayment SC with S Bogan (Appellant)
V Bosnjak (Respondent)
Solicitors:
Woods & Day Solicitors (Appellant)
Gilbert & Tobin (Respondent)

File Number(s): 2015/102281
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 257

Date of Decision:

20 March 2015

Before:

Ball J

File Number(s):

2014/354994

HEADNOTE

[This headnote is not to be read as part of the judgment]

In Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154, the Court allowed the appeal and ordered that the respondent pay the appellant’s costs of the proceedings at first instance and on appeal.

On the making of those orders, the respondent repaid the appellant the judgment sum, together with interest on that amount, calculated to the date of payment at a rate 4% above the cash rate.

By Notice of Motion filed 11 July 2016, the successful appellant sought orders varying the Court’s costs orders made in the appeal. The issues in the application were:

i. Whether interest on the judgment monies repaid ought to be calculated at 6% above the cash rate, equal to the prescribed post-judgment interest rate, or at 4% above, which is equal to the recommended pre-judgment interest rate;

ii. Whether orders should be made, after the making of the final orders in the appeal, for interest to be paid on costs incurred at first instance and on appeal.

The Court (Beazley P, Meagher and Ward JJA) held:

In relation to (i):

A claim to interest on judgment monies repaid following a successful appeal more closely approximates a claim for pre-judgment (rather than post-judgment) interest. An interest rate of 4% above the cash rate (the rate usually applied under s 100 of the Civil Procedure Act 2005 (NSW)) fairly and sufficiently compensates the appellant; particularly in circumstances where there is no evidence of prevailing commercial interest rates which might exceed that rate: [13].

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 followed.

In relation to (ii):

The making of orders for interest on costs of the proceedings at first instance and on appeal is appropriate in this case where an order for interest on costs was made by the primary judge in favour of the (then successful) respondent, and the making of that order was not opposed; where it was not suggested that the appellant’s conduct resulted in any delay in the prosecution of the appeal; and where it was not suggested that the respondent was prejudiced by the making of the application for interest on costs after the making of the final orders in the appeal: [24]-[25].

Judgment

THE COURT: In its judgment delivered on 4 July 2016 (Secure Parking Pty Ltd v Woollahra Municipal Council [2016] NSWCA 154) this Court allowed Secure Parking’s appeal and set aside orders made by the primary judge, including order 1 which entered judgment in favour of the Council for $6,940,811.41. The judgment at first instance was entered on 20 March 2015, and satisfied by Secure Parking by payment of that amount to the Council on 9 April 2015.
In addition to setting aside that judgment (order 2), this Court ordered that the unsuccessful Council’s amended summons be dismissed (order 3); that the Council pay Secure Parking’s costs of the proceedings before the primary judge (order 4); and that it also pay Secure Parking’s costs of the appeal (order 5).
The Council repaid to Secure Parking the sum of $6,940,811.41 together with interest on that amount for the period from 9 April 2015 to 4 July 2016. That interest was calculated at a rate 4% above the cash rate published by the Reserve Bank of Australia (RBA) and was calculated to 4 July 2016, the date of payment.

Secure Parking’s notice of motion

By its notice of motion filed 11 July 2016 Secure Parking seeks orders varying this Court’s orders 2, 4 and 5. In relation to order 2 which set aside the judgment entered by the primary judge, an order is sought that the Council repay the judgment sum together with interest calculated at a rate 6% above the cash rate published by the RBA. In relation to order 4 an order is sought that the Council pay Secure Parking’s costs of the proceedings before the primary judge on an ordinary basis up to and including 19 December 2014 and thereafter on an indemnity basis. An order is also sought that the Council pay interest on those costs at the rate prescribed by Uniform Civil Procedure Rules 2005 (UCPR), r 36.7(1) which is a rate 6% above that cash rate. In relation to order 5 an order is sought that the Council pay interest on Secure Parking’s costs of the appeal calculated at the same rate. In each case interest is sought from the date those costs were paid by Secure Parking.

Paragraph 1 of the motion: rate of interest on judgment amount satisfied and subsequently recovered

Section 100 of the Civil Procedure Act 2005 (NSW) (the Act) provides that interest up to judgment, or pre-judgment interest, is to be calculated “at such rate as the Court thinks fit”. Practice Note SC Gen 16, the purpose of which is described as being to “set the rate of pre-judgment interest that may be awarded” under s 100, states that practitioners and litigants should expect that where interest in respect of a pre-judgment period is to be included in a judgment the Court “will have regard to” an interest rate in respect of six monthly periods which is 4% above the RBA cash rate last published before each such period commenced. That rate is also, in accordance with UCPR r 6.12(8), the default rate at which interest is taken to be claimed in the case of a liquidated sum in the event that no rate is specified in that claim for interest up to judgment.
Secure Parking seeks an order for the payment of interest calculated on the same basis, but at an interest rate of 6% above the RBA cash rate. That rate is equal to the prescribed rate at which post-judgment interest may be awarded under s 101 of the Act. That section provides that unless the Court otherwise orders interest is payable on so much of the amount of a judgment as is from time to time unpaid; and that such interest is to be calculated at the rate specified in UCPR r 36.7(1) unless the Court orders that it should be paid at some other rate.
In its written submissions-in-chief Secure Parking sought an order for payment of interest at that “prescribed rate” pursuant to s 101 of the Act. In its written submissions in reply Secure Parking accepts that the Court’s power to award interest in respect of the repayment of judgment monies following a successful appeal, insofar as it derives from the Civil Procedure Act, is not to be found in s 101. It also accepts that the interest on such an amount for the period up to the judgment of this Court closely approximates a claim for pre-judgment interest, as distinct from one for post-judgment interest.
In support of its claim to interest at the higher rate Secure Parking refers to UCPR r 51.19 which in terms provides that an appellant who seeks an order for reinstatement or restitution of an amount must include in the notice of appeal where such restitution is sought “any claim for interest that is at a rate other than the relevant rate set out in r 36.7(1)”. It suggests that this rule reflects an earlier practice of the Court to award “restitutionary interest at the rates payable on judgments unless special circumstances exist”. Reference is made to that practice by Mason P (Beazley JA and Ipp A-JA agreeing) in Heydon v NRMA Ltd(No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 at [32].
Secure Parking’s amended summons included a claim for repayment of the amount of the judgment appealed from together with interest on that amount pursuant to s 100. In its written submissions in reply Secure Parking accepts that the effect of Practice Note SC Gen 16 is that in exercising its discretion under s 100 the Court should have regard to ordering an interest rate 4% above the relevant cash rate. It submits, however, that UCPR r 51.19 deals specifically with the rate at which interest is to be awarded on any sum claimed by way of restitution; and that accordingly the starting position in relation to the award of any such interest should be one calculated at that rate. In support of this submission Secure Parking also relies on this Court’s decision in Woolworths Ltd v Strong(No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 (Campbell JA, Handley AJA and Harrison J agreeing). There it was accepted by the unsuccessful party that she bore the onus of persuading the Court that the rate at which interest on a restitutionary claim is to be calculated should be other than the rate set out in r 36.7(1): at [30].
Finally, Secure Parking accepts that in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd(No 2) [2014] NSWCA 425 this Court approached the awarding of interest on such a claim on a different basis. In that case, in the exercise of its undoubted discretion, the Court awarded interest on an amount to be repaid following a successful appeal, at the pre-judgment interest rate usually applied under s 100. In doing so the Court did not approach the exercise of the discretion consistently with any earlier practice as described above, or on the basis that the effect of r 51.19 is that interest should be awarded at the rate set out in r 36.7(1) unless the circumstances justify a departure from that rate.
The Court (Macfarlan JA, Meagher and Barrett JJA agreeing) approached the exercise of the discretion noting that since 1 July 2010 the prescribed post-judgment interest rate is higher than that suggested in relation to pre-judgment interest and that a reason for that difference has been attributed to an intention that the post-judgment rate be fixed so as to provide a “disincentive to unsuccessful parties to delay payment of a judgment sum”: at [14] citing Maestrale v Aspite (No 2) [2014] NSWCA 302 at [15] (Beazley P, Macfarlan and Barrett JJA). Having regard to the fact of that difference, and the explanation for its existence, the Court approached the exercise of its discretion by considering whether in such a case “the claimant’s right more closely approximates that of a claimant for pre-judgment interest or that of a claimant for post-judgment interest”: Mount Bruce (No 2) at [11].
It is not necessary in this case to resolve any difference in approach between the decisions of this Court in Woolworths (No 2) and Mount Bruce (No 2) which might be justified by reference to r 51.19. That is because in Heydon (No 2) Mason P accepted that a reason for departing from the practice of awarding interest at the rates payable on judgments might reasonably include that those rates were fixed “in disregard of commercial reality or that they embody a deterrent or punitive intent”: at [31]. It is also significant that during the proposed interest period being considered in Heydon (No 2) there was no difference between the prescribed pre-judgment and post-judgment interest rates. In each case they were those set out in what was then Schedule J to the Supreme Court Rules 1970.
There is currently a difference between the recommended pre-judgment and prescribed post-judgment interest rates. The latter are higher and that difference is explained, at least in part, as embodying a “deterrent or punitive intent”. In circumstances where it is accepted that Secure Parking’s claim closely approximates one for pre-judgment interest there is good reason for not applying the rate set out in r 36.7(1); and that remains so even if regard is had to r 51.19. Accordingly, and essentially for the reasons given by Macfarlan JA in Mount Bruce (No 2) at [12] to [18], we consider that an interest rate 4% above the cash rate fairly and sufficiently compensated Secure Parking for being kept out of its money, particularly in circumstances where there is no other evidence of prevailing commercial interest rates which suggested that any such appropriate rate might exceed the cash rate by more than 4%. For these reasons Secure Parking’s application by para 1 of its notice of motion is rejected. As the judgment sum has been repaid with interest calculated at the cash rate plus 4%, there is no utility in the Court making an order that the Council do what it has already done.

Paragraph 2 of the motion: indemnity costs of proceedings at first instance

This Court ordered that the Council pay Secure Parking’s costs of the proceedings before the primary judge. In accordance with UCPR r 42.2 those costs were to be assessed on the ordinary basis. Secure Parking seeks that order 4 be varied to provide that the Council pay costs of the proceedings before the primary judge on an indemnity basis from 20 December 2014. That order is sought by reason of the Council’s rejection of a Calderbank offer made in the proceedings below. The time for acceptance of that offer expired at 5pm on 19 December 2014. The respondent consents to that proposed variation. Accordingly an order in the terms sought should be made.

Paragraphs 2 and 3 of the motion: interests on costs at first instance and on appeal

Secure Parking’s motion describes these orders as sought pursuant to UCPR r 51.58. That rule applies to an application for the variation or discharge of an order of a Judge of Appeal. This Court’s orders made on 4 July 2016 do not answer that description. Accordingly its application must be taken to be made under UCPR r 36.16(1), and as being to vary the orders made on that day by the making of orders for the payment of interest on costs.
No order for the payment of interest, either on its costs of the appeal or at first instance, was sought by Secure Parking’s notice of appeal or amended notice of appeal. Nor were any written or oral submissions made to this Court before judgment was given suggesting that there was any claim for interest on costs, either of the appeal or at first instance in the event that the appeal was successful. That is so notwithstanding that following its success before the primary judge, the Council sought and obtained, by a motion filed after the delivery of judgment, an order for interest on the costs that Secure Parking was ordered to pay it: Woollahra Municipal Council vSecure Parking Pty Ltd (No 2) [2015] NSWSC 452. It is significant for present purposes that no reason was then advanced by Secure Parking as to why the Council should not have an order for such interest where it also was entitled to indemnity costs: at [41].

In its written submissions-in-chief Secure Parking submits that in the absence of any countervailing discretionary factor it is appropriate that an order for interest on costs be made. In that respect it relies upon the position as described by Gleeson JA (Ward and Emmett JJA agreeing) in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 at [403]:

… in the absence of any countervailing discretionary factor, it is appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out of pocket in respect of relevant costs which it had paid. There is no requirement to establish that the circumstances of the case are out of the ordinary: Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331 at [4] per Macfarlan JA (Tobias JA agreeing) citing Lahoud v Lahoud [2006] NSWCA 126 at [82]-[83] per Campbell J.

That statement was made with respect to the power in s 101(4). That subsection (before it was amended in relation to proceedings commenced on and after 24 November 2015) and subsection 101(1) relevantly provided:

(1) Unless the court orders otherwise, interest is payable on so much of the amount of a judgment (exclusive of any order for costs) as is from time to time unpaid.
…
(4) The court may order that interest is to be paid on an amount payable under an order for the payment of costs.

It was not submitted that, contrary to the basis on which a number of decisions of this Court have hitherto provided, s 101(4) confers power to order interest be paid on the amount which is payable under the costs order; being an amount which is payable only on the making of that order. Section 101(4) was amended by the Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW). That amendment is not relevant to the orders sought by Secure Parking because the proceedings at first instance, and the proceedings by way of appeal, were commenced well before 24 November 2015. The subsection as amended now provides:

(4) Unless the court orders otherwise, interest is payable on an amount payable under an order for the payment of costs.

It is recognised that there is an apparent conflict in the authorities in this Court as to the extent to which an applicant for an order for interest on costs must justify the making of such an order by pointing to circumstances of the case which do so. In Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436; [2013] NSWCA 211 at [38] this Court (Meagher, Barrett and Ward JJA) said that:

A party who contends that there should be an order for interest on costs must do more than point to the fact that the proceedings were protracted and that it had to outlay moneys on its own costs over a long period.

On the other hand in Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331 at [3]-[4] (Macfarlan JA, Tobias JA and Handley AJA agreeing), this Court said that ordinarily there should be order for interest on costs. In more recent decisions the Court has noted this apparent conflict without there being any need to resolve it: see Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [43]-[45] (Basten, Gleeson and Leeming JJA); DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2) [2014] NSWCA 142 at [5]-[6] (Meagher JA, Leeming JA and Bergin CJ in Eq); and Galafassi v Kelly (No 2) [2014] NSWCA 239 at [25] (Bathurst CJ, Ward and Gleeson JJA).
In its written submissions in reply Secure Parking refers to this apparent conflict and submits that the Court’s decision in Drummond and Rosen should be preferred. It also submits that it has made out a sufficient basis in the present case for an award of interest on costs. It refers to the Council’s concession that it is liable to pay the costs of the trial from 20 December 2014 on an indemnity basis which, it is submitted, involves an acceptance that the Council unreasonably persisted in maintaining the proceedings in the face of Secure Parking’s Calderbank offer. For that reason it is submitted that Secure Parking should have interest on its costs incurred in the proceedings at first instance (at least from December 2014) and on appeal on the basis that those costs would not have been incurred had its Calderbank offer been accepted. In relation to the costs at first instance Secure Parking also relies on the fact that the Council sought and obtained a similar order, thereby accepting that it was appropriate that such an order be made to compensate it for such costs in circumstances where there is no relevant difference between the respective positions of the parties which would speak against the making of a similar order in favour of Secure Parking.
The Council in response submits that the following considerations weigh against the making of any order for interest on costs. First, there is no suggestion that it did not proceed in the prosecution of its claim and in its response to Secure Parking’s appeal otherwise than with reasonable diligence and dispatch. Secondly, no application for an order for interest on costs was made by the notice of appeal or foreshadowed in the argument of the appeal. Accordingly it is said that if an order for interest is to be made it ought be made from 4 July 2016, the date when the relevant cost orders were made. Thirdly, if there is to be an award of such interest at the post-judgment rate as claimed, that interest should only be imposed from the date of this Court’s orders because until those orders were made there was no obligation upon the Council to pay Secure Parking’s costs. Finally, the Council refers to the amended terms of s 101(4) and (5). The former is set out above and the latter provides that interest on an amount payable under an order made under s 101(4) is to be calculated at the rate provided by UCPR r 36.7(1) “as from the date the order was made or any other date that the Court orders”. It is submitted that in circumstances where Secure Parking seeks interest at the higher post-judgment rate, interest should only be payable from the date of this Court’s orders.
Orders for the payment by the Council of interest on recoverable costs incurred and paid by Secure Parking should be made. The purpose for the making of such an order, as was observed in Doppstadt, is to compensate the party having the benefit of the costs order. The proceedings between these parties essentially involved a commercial dispute, notwithstanding that one of the parties is a local government authority. They each implicitly accepted that this was an appropriate case in which to make an order for interest on costs following the completion of the proceedings at first instance. The Council made that application and Secure Parking did not oppose it. It is not suggested that Secure Parking’s conduct of the proceedings, either at first instance or on appeal, disentitled it to such an order. The Council points to no prejudice to it in such an order being made notwithstanding that the order was not sought by the notice of appeal or at any stage during the hearing of the appeal and before its final determination.
Because interest is sought in relation to a period before the order for payment of interest under s 101(4) is made the pre-judgment interest rate should be applied because until that order is made the Council will not in any sense have delayed in paying any amount of costs which it was liable to pay. Accordingly an order should be made in relation to Secure Parking’s costs at first instance and on appeal which the Council is liable to pay. In each case that order should be in the terms sought except that in the period to 30 June 2017 interest should be calculated on any outstanding costs amount at 4% above the cash rate prescribed by the RBA. For any period after that date the relevant rate is 6% above that cash rate. We have provided for interest at the lower rate until 30 June 2017 to allow the parties a reasonable time in which to agree, if possible, the amount of the costs which the Council is liable to pay.

Conclusion

In circumstances where each party has had some success in the relief sought by the appellant’s notice of motion it is appropriate that there be no order as to costs. Accordingly, we make the following orders:

1.   Order 4 made on 4 July 2016 be varied as follows:
4.   Respondent pay the appellant’s costs of the proceedings before the primary judge on an ordinary basis up to and including 19 December 2014 and on an indemnity basis from 20 December 2014.
2. Order the respondent pay the appellant interest on the costs which are the subject of order 4 made on 4 July 2016 at the rate that is:
(a) in respect of the period from 1 January to 30 June – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced in any year up to 2017 and the rate that is 6% above that cash rate in any year after 2017, and
(b) in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate.
in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of:
(c)   Such time as the respondent has paid the costs due to the appellant under that order 4; or
(d)   Any further order relating to interest on costs in these proceedings.

In this order:
X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before the primary judge;
Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before the primary judge;
The Allowed Percentage equals ((Y/X) x 100)%.
3.   Order the respondent pay the appellant interest on costs and disbursements payable pursuant to order 5 made on 4 July 2016 at the rate of interest which is:
(a)   in respect of the period from 1 January to 30 June – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced in any year up to 2017 and the rate that is 6% above that cash rate in any year after 2017, and
(b)   in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate.
in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of:
(c)   Such time as the respondent has paid the costs due to the appellant under that order 5; or
(d)   Any further order relating to interest on costs in these proceedings.

In this order:
X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before this Court;
Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before this Court;
The Allowed Percentage equals ((Y/X) x 100%).
4. Otherwise dismiss the appellant’s notice of motion filed 11 June 2016.
5. Make no order as to the costs of that notice of motion.

***********

Amendments

24 March 2017 - Typographical error corrected in headnote

03 April 2017 - coversheet and paragraph [26] - Order 2 was amended pursuant to UCPR 36.17.

Decision last updated: 03 April 2017

Medium Neutral Citation:	Secure Parking Pty Ltd v Woollahra Municipal Council (No 2) [2017] NSWCA 51
Hearing dates:	On the papers
Decision date:	21 March 2017
Before:	Beazley P; Meagher JA; Ward JA
Decision:	1. Order 4 made on 4 July 2016 be varied as follows: 4. Respondent pay the appellant’s costs of the proceedings before the primary judge on an ordinary basis up to and including 19 December 2014 and on an indemnity basis from 20 December 2014. 2. Order the respondent pay the appellant interest on the costs which are the subject of order 4 made on 4 July 2016 at the rate that is: (a) in respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and the rate that is 6% above that cash rate in any year after 2017, and (b) in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate. in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of: (c) Such time as the respondent has paid the costs due to the appellant under that order 4; or (d) Any further order relating to interest on costs in these proceedings. In this order: X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before the primary judge; Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before the primary judge; The Allowed Percentage equals ((Y/X) x 100)%. 3. Order the respondent pay the appellant interest on costs and disbursements payable pursuant to order 5 made on 4 July 2016 at the rate of interest which is: (a) in respect of the period from 1 January to 30 June – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced in any year up to 2017 and the rate that is 6% above that cash rate in any year after 2017, and (b) in respect of the period from 1 July to 31 December – in any year up to and including 2016 the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced and in any year after that year the rate that is 6% above that cash rate. in each case on the Allowed Percentage of each amount of costs and disbursements actually paid by or on behalf of the appellant, from the date of payment of each such amount of costs and disbursements until the first to occur of: (c) Such time as the respondent has paid the costs due to the appellant under that order 5; or (d) Any further order relating to interest on costs in these proceedings. In this order: X equals the total amount of costs and disbursements which the appellant has paid or is liable to pay to its legal advisors in connection with the proceedings before this Court; Y equals the total amount of costs and disbursements allowed on assessment to the appellant in connection with the proceedings before this Court; The Allowed Percentage equals ((Y/X) x 100%). 4. Otherwise dismiss the appellant’s notice of motion filed 11 June 2016. 5. Make no order as to the costs of that notice of motion.
Catchwords:	COSTS – interest on costs – where successful appellant seeks order for interest on costs of proceedings at first instance and on appeal following final judgment – where order for interest on costs at first instance made by primary judge in favour of respondent – where making of that order was not opposed – where not suggested successful appellant’s conduct resulted in delay of prosecution of appeal or that respondent prejudiced by making of application for interest on costs after final orders in appeal – orders made for interest on costs of proceedings at first instance and on appeal INTEREST – judgments – where payment made by successful appellant to respondent as plaintiff in satisfaction of judgment at first instance which was then reversed on appeal – where that amount repaid by respondent immediately following decision on appeal – where claim by appellant for interest on judgment amount repaid – whether interest should be awarded at pre-judgment rate (Civil Procedure Act 2005 (NSW), s 101) or post-judgment rate (Civil Procedure Act, s 100) – effect of UCPR r 51.19 in circumstances where interest sought in substance pre-judgment interest on an amount claimed by way of restitution – interest awarded at pre-judgment rate
Legislation Cited:	Courts and Other Justice Portfolio Legislation Amendment Act 2015 (NSW) Civil Procedure Act 2005 (NSW), ss 100, 101 Supreme Court Rules 1970, Sch J Uniform Civil Procedure Rules 2005 (NSW), rr 6.12(8), 36.7(1), 42.2, 51.19, 51.58,
Cases Cited:	Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd [2014] NSWCA 158 DSG Holdings Australia Pty Ltd v Helenic Pty Ltd (No 2) [2014] NSWCA 142 Drummond and Rosen Pty Ltd v Easey & Ors (No 2) [2009] NSWCA 331 Galafassi v Kelly (No 2) [2014] NSWCA 239 Heydon v NRMA Ltd (No 2) (2001) 53 NSWLR 600; [2001] NSWCA 445 Illawarra Hotel Co Pty Ltd v Walton Construction Pty Ltd (No 2) (2013) 84 NSWLR 436; [2013] NSWCA 211 Maestrale v Aspite (No 2) [2014] NSWCA 302 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014] NSWCA 425 Woollahra Municipal Council v Secure Parking Pty Ltd (No 2) [2015] NSWSC 452 Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99
Category:	Consequential orders (other than Costs)
Parties:	Secure Parking Pty Ltd (Appellant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: B W Rayment SC with S Bogan (Appellant) V Bosnjak (Respondent) Solicitors: Woods & Day Solicitors (Appellant) Gilbert & Tobin (Respondent)
File Number(s):	2015/102281
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 257 Date of Decision: 20 March 2015 Before: Ball J File Number(s): 2014/354994