"In addition, I am comfortably satisfied that when the [respondent] received a levy notice, not only was he being charged one quarter of the costs attributed to the running and routine maintenance, servicing and repair of the lift system as a whole, pursuant to By-Law 21, but as part of his administration levies, he was being charged at least 19.38 per cent as well for costs which were identical."
123 In order to expose the error, the respondent drew attention to certain paragraphs of the applicant's submissions in this Court in which $100,000 is assumed, by way of example, to represent the total cost for one year to maintain all four lifts in the building. In the context of this example, the appellant argued that the Owners Corporation approached the respondent's obligations in the following manner:
48.1 from the $100,000 lift costs, it levied 25 per cent of these costs to the respondent pursuant to his obligations under By-Law 21;
48.2 from the remaining $75,000, it struck a levy against the respondent, as a lot owner required to maintain the building pursuant to Part 3 of Chapter 3 of the Act, of a further sum of 19.38 per cent of $75,000 (i.e. $14,250).
124 Relying upon the passage quoted at par [47], the respondent submitted that this analysis is erroneous. The respondent submitted that the relevant portion of the example set forth in par [48.2] should read, "from the same $100,000, it struck a levy against the respondent . . . of a further sum of 19.38 per cent of $100,000 (i.e. $19,380)".
125 In the respondent's submission, this is a significant difference for the reason that, if it is correct, the respondent was being levied 44.382 per cent of the whole costs attributed to the running and routine maintenance, servicing and repair of the lift system as a whole, a circumstance tending to suggest (according to this submission) that the appellant's interpretation of the by-law was, in effect, uncommercial and that his Honour's opinion of the by-law, as one in need of "a commercial, businesslike interpretation", ought to be adopted. The respondent maintained that submission in this Court as supporting his Honour's conclusions. Indeed, the respondent argued, relying upon Coulton v Holcombe (1986) 162 CLR 1, that the appellant ought to be bound by the conduct of its case in the Court below and, in effect, ought not to be permitted in this Court to argue for some less onerous and burdensome alternative interpretation of the by-law.
126 However, as will by now be apparent from what appears above, I am of the opinion that his Honour's interpretation of the by-law is incorrect. It follows from this result, therefore, that the respondent has been overcharged, but only by an amount equal to 19.382 per cent of his one-quarter share of the costs of the lifts as a whole, for which he was otherwise levied, for the excusive use and enjoyment of Lift 4, in accordance with the terms of By-Law 21. According to the appellant's concession, the amount of that overcharge is $18,758.14.
127 The respondent sought to argue on the cross appeal that his Honour should have awarded interest on the whole of the amount overpaid. The effect of the conclusion I have come to, having regard to the appellant's concession, is that the respondent's arguments on the question of interest may be conveniently transposed to the smaller sum.
128 The respondent argued in this Court that his Honour fell into error in awarding interest only from the date of a letter written by the respondent to the Owners Corporation on 9 September 2002 in which, as his Honour found, the respondent "was making clear to the body corporate that they had overcharged him". He argued that the primary purpose of an award of interest is compensatory and is payable, and ought to have been awarded, in any circumstances where the respondent had been kept out of his money or denied the opportunity to earn interest upon it or otherwise to utilise his overcharged payments from the date or dates he made them. The respondent argued that his Honour's discretion miscarried.
129 The respondent offered, in his submissions in this Court, to bring in an updated calculation of interest. Such interest would ordinarily run from the date upon which the cause of action arises. In the present case, being an action to recover money paid under a mistake, that would mean that interest would run from the respective dates upon which the appellant received the overpaid amounts.
130 The appellant made no submissions in this Court on the cross appeal. Even having regard to the discretionary nature of a judicial decision concerning the award of interest under the statute, I can see no reason why the respondent would not have become entitled to an award of interest on the amount found by his Honour to have been overcharged or, correspondingly, to an award of interest on such smaller sum as the appellant now concedes was overpaid, in circumstances where its appeal to this Court were allowed.