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[2017] NSWCA 51
Court of Appeal (NSW)
2017-03-21
Beazley P, Meagher JA, Ward JA
Original judgment source is linked above.
(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.
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;
(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.
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;
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
[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 Court's 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.]
[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
Secure Parking's notice of motion
Paragraph 1 of the motion: rate of interest on judgment amount satisfied and subsequently recovered
Paragraph 2 of the motion: indemnity costs of proceedings at first instance
Paragraphs 2 and 3 of the motion: interests on costs at first instance and on appeal
Conclusion
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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2017
Secure Parking Pty Ltd
Woollahra Municipal Council
(2001) 53 NSWLR 600
(2013) 84 NSWLR 436
(2011) 80 NSWLR 445