The Owners Strata Plan 57504 v Building Insurers' Guarantee Corporation

[2008] NSWSC 1285

CITATION:	The Owners Strata Plan 57504 v Building Insurers' Guarantee Corporation [2008] NSWSC 1285
HEARING DATE(S):	21 November 2008
JUDGMENT OF:	McDougall J at 1
EX TEMPORE JUDGMENT DATE:	21 November 2008
DECISION:	See para [21] of the judgment.
CATCHWORDS:	INTEREST - interest on damages - discretion - compensatory purpose - interest only on amounts paid - interest on costs - form of order.
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules
CASES CITED:	Kalls Enterprises Pty Limited (In Liquidation) v Baloglow (No.3) [2007] NSWCA 298 Lahoud v Lahoud [2006] NSWSC 126 Screenco Pty Limited v RL Dew Pty Limited (2003) 58 NSWLR 720
PARTIES:	The Owners - Strata Plan No.57504 (Plaintiff) Building Insurers' Guarantee Corporation (Defendant)
FILE NUMBER(S):	SC 55043/06
COUNSEL:	H J A Neal (Plaintiff) R A O'Keefe (Defendant)
SOLICITORS:	Andreones Lawyers (Plaintiff) Mills Oakley Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

McDOUGALL J

21 November 2008 ex tempore (revised 21 November 2008)

55043/06 THE OWNERS – STRATA PLAN 57504 v BUILDING INSURERS GUARANTEE CORPORATION

JUDGMENT

1 HIS HONOUR: On 3 October 2008 I gave reasons for decision on applications relating to a referee's report. In substance, I said that certain parts of the report should be varied (in some cases, as agreed); that a particular finding should be rejected; and that the referee should reconsider another finding.

2 The referee has now produced an amended report which addresses the matter that I sent back. The questions today relate to the orders to be made to give effect both to my earlier reasons and to matters emerging from the varied report.

3 The first question in dispute is whether, and if so to what extent, the Owners Corporation should have interest on the amount to which, by reason of my decision to adopt the amended report, it will become entitled. It is common ground too that the Owners Corporation should have interest on amounts actually paid by it - of the order of $60,000, in several payments in 2004 and 2005.

4 It is common ground that the amount found by the referee for rectification costs, including escalation to 4 March 2008, is $1,933,551.48 (as at 4 March 2008). That amount includes the amounts totalling $60,000.00 odd hitherto paid by the Owners Corporation, but otherwise represents amounts unpaid, being the referee's estimate of the costs of rectification including escalation to 4 March 2008.

5 Mr Neal of Counsel, for the Owners Corporation, submits that his client is entitled to interest on the whole amount as from 4 March 2008. He relies on the general principle that interest is payable to recognise the fact that a plaintiff has been kept out of the use of money which by hypothesis was and is its, and the defendant has had the use of that money, up until the time payment is actually made. That basis for the award of interest has been recognised for many years and is referred to,…