3 Hexiva contends that its damages amount to $376,754.42 (as at 1 November 2006), being interest calculated at the rates prescribed by the rules of court for unpaid judgment debts, from the date on which each payment could and should have been made until the payment was made, and then on the outstanding balance of interest from 16 May 2001 (when all the principal was paid) until 1 November 2006. The Fiala Estate, on the other hand, while it does not dispute the calculations which produce that result, contends that Hexiva's damages should be calculated as interest at the (significantly lower) historical rate obtained from the Reserve Bank of Australia for retail deposit and investment rates for cash management accounts for amounts of $50,000 or more until the principal was paid in full on 16 May 2001 (which amounts to $105,004.09), and thereafter statutory interest at the prescribed rates until judgment (a further $52,763.84), producing a total of $157,767.93 as at 1 November 2006.
4 The fundamental difference is one of principle, not calculation, namely whether interest should be calculated, as Hexiva contends, at the court judgment rates, or, as the Fiala Estate contends, at the historical cash management market rates.
5 (NSW) Civil Procedure Act 2005, s 100, relevantly provides as follows:
100. Interest up to judgment
(1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit:
(a) on the whole or any part of the money, and
(b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect.
(2) In proceedings for the recovery of a debt or damages in which payment of the whole or a part of the debt or damages has been made after the proceedings commenced but before, or without, judgment being given, the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit:
(a) on the whole or any part of the money paid, and
(b) for the whole or any part of the period from the time the cause of action arose until the time the money was paid.
(3) This section:
(a) does not authorise the giving of interest on any interest awarded under this section, and
(b) does not authorise the giving of interest on a debt in respect of any period for which interest is payable as of right, whether by virtue of an agreement or otherwise, and
(c) does not authorise the giving of interest in any proceedings for the recovery of money in which the amount claimed is less than such amount as may be prescribed by the uniform rules, and
(d) does not affect the damages recoverable for the dishonour of a bill of exchange.
…
6 Under s 100(2), interest may be awarded on moneys paid after proceedings are commenced but before judgment [Victorian Work Cover Authority v Esso Australia Limited (2001) 207 CLR 520]. Otherwise, the section does not authorise the awarding of interest on sums paid before proceedings are commenced.