Tjiong v Tjiong (No 2)

In the case of Tjiong v Tjiong (No 2), the parties were involved in a long-standing dispute concerning property settlement, which was eventually settled through a consent order. The dispute arose out of a relationship between the parties, and the primary concern was the determination of interest on costs that were incurred during the proceedings. This matter was brought before the Supreme Court of New South Wales, where the central issue was whether the court had the authority to award interest on costs that were not included in the principal judgment, which was delivered several years earlier.

The legal issues before the court were whether the claim for interest on costs was either statute-barred or had merged in the principal judgment, and whether the court's power to award interest on costs under section 98(3) of the Civil Procedure Act 2005 (NSW) must be exercised at the time of the judgment. The court had to consider the doctrine of functus officio and determine if the court's power to award interest on costs had ceased once the judgment was delivered. Additionally, the court needed to assess the discretionary factors that could influence the award of interest on costs, particularly the delay in making the application, and whether the principles of the Limitation Act 1969 (NSW) could be applied by analogy to justify an award of interest at a pre-judgment rate.

The court found that the claim for interest on costs was not statute-barred, and it had not merged in the principal judgment. The court held that the doctrine of functus officio did not apply in this context, as the court retained the power to award interest on costs even after the principal judgment had been delivered. The court exercised its discretion to award interest on costs, taking into account the delay in making the application. By applying the principles of the Limitation Act 1969 (NSW) by analogy, the court determined that the delay justified an award of interest at the pre-judgment rate. Consequently, the court made an order for interest on costs, which was payable from the date of the consent order until the date of the final order, at a rate of 5% per annum.