Tadrous v Tadrous (No. 2)

[2012] NSWCA 91

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tadrous v Tadrous (No. 2) [2012] NSWCA 91

Hearing dates:

On the papers

Decision date:

17 April 2012

Before:

Young JA, Meagher JA, Handley AJA

Decision:

(1) Order, in accordance with order 3 made by the Court on 23 February 2012, that the charge secures $561,360 plus $426,614.38 and from 23 February 2012 interest accrues on the sum of $987,974.38 pursuant to s 101 of the Civil Procedure Act 2005 until discharged.

(2) Order that the appellant pay the respondent's costs relating to the determination of the issue as to the amount of interest secured by the charge from 1 December 2003 to 23 February 2012.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ORDERS - interest - no question of principle

Legislation Cited:

Civil Procedure Act 2005
UCPR rr 6.12.8, 36.4(1), 36.7

Category:

Consequential orders

Parties:

Michael Tadrous (Appellant)
Tanya Tadrous (Respondent)

Representation:

Counsel:
R E Dubler SC, D A Allen (Appellant)
J G Renwick, E Peden (Respondent)
Solicitors:
Norwest Law (Appellant)
Wyatt Attorneys (Respondent)

File Number(s):

CA 2007/258058

 Decision under appeal 

Citation:

Tanya Tadrous v Michael Tadrous
[2010] NSWSC 1388

Date of Decision:

2010-12-03 00:00:00

Before:

Pembroke J

File Number(s):

SC 2007/258058

Judgment

1. THE COURT: On 23 February 2012 the Court delivered judgment in this appeal and made orders for the calculation of the amount of interest secured by the charge from 1 December 2003 to 23 February 2012. Those orders provided that if the parties were unable to agree as to the calculation of that amount they should lodge written submissions to enable the Court to determine what that amount should be.

1. The parties were unable to agree and the Court has received written submissions as to the calculation of that amount.

1. A number of issues were raised in relation to the calculation of that amount. Those issues and the disposition of them follows.

1. It was submitted by the appellant that interest should be calculated pursuant to UCPR r 6.12.8 as it stood prior to 1 July 2010. That submission is rejected. The order made by the Court provides for the calculation of interest in accordance with the current version of that rule.

1. The appellant submitted that interest should be calculated from 23 December 2003 instead of 1 December 2003. That submission is rejected. The order of the Court states that interest should be calculated from 1 December 2003.

1. The respondent submitted that a calculation of interest "from 1 December 2003" did not include interest for that day. That submission is correct. The general rule is that a period of time dating from a given day is to be reckoned exclusive of that day.

1. The appellant submitted that any calculation of interest pursuant to s 101 of the Civil Procedure Act 2005 from 23 February 2012 should not take any account of the amount of interest awarded at pre-judgment rates. That submission is rejected. Section 101(6) states that the section does not authorise the giving of interest on any interest payable "under this section". That section deals with post-judgment interest. The interest awarded at pre-judgment rates was not awarded under s 101 but in the exercise of the Court's equitable jurisdiction and to give effect to the respondent's equity arising from the proprietary estoppel.

1. Finally, the appellant submitted that an order should be made as to the rate at which post-judgment interest accrues. It is not necessary that the Court make such an order.

1. The amount of interest for the period from 1 December 2003 to 23 February 2012 is ordered to be $426,614.38. That amount is calculated in accordance with the rulings set out above.

1. In accordance with order 3 made by the Court on 23 February 2012, the charge secures $561,360 plus $426,614.38 and from 23 February 2012 interest accrues on the sum of $987,974.38 pursuant to s 101 of the Civil Procedure Act 2005 until discharged. As the Court has made no order as to the rate at which interest under s 101 is to be calculated, the relevant rate is the "prescribed rate" which is set out in UCPR r 36.7.

1. As the issues raised and dealt with concerning the calculation of the amount of interest secured by the charge have been resolved substantially as contended for by the respondent, it is appropriate that the appellant pay the costs relating to the resolution of that issue.

1. Accordingly, the orders of the Court are:

(1) In accordance with order 3 made by the Court on 23 February 2012, that the charge secures $561,360 plus $426,614.38 and from 23 February 2012 interest accrues on the sum of $987,974.38 pursuant to s 101 of the Civil Procedure Act 2005 until discharged.

(2)   That the appellant pay the respondent's costs relating to the determination of the issue as to the amount of interest secured by the charge from 1 December 2003 to 23 February 2012.

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Decision last updated: 17 April 2012