20 According to the respondent, the table reproduced above, which was completed from information set out in Mr O'Donnell's affidavit, identifies a "litany of delay" on the part of the applicants who failed to prosecute their claims in a timely and reasonable manner.
21 The applicants, in contending to the contrary, relied on the circumstances set out in support of their submissions that Rule 216(6) should not be invoked, in the exercise of discretion, in the respondent's favour. In addition the applicants contended that the respondent, which had acted unfairly, has had the benefit of the money. The applicants also contended that the issue of delay had already been disposed of by agreement between the parties. This last mentioned contention appears to be a reference to a Notice of Motion filed by the respondent in July 2006 in which orders were sought to strike out the applicants' claims for want of prosecution. According to Mr O'Donnell's affidavit the respondent ultimately withdrew its Notice of Motion following negotiations with the applicants. Correspondence between the parties annexed to Mr O'Donnell's affidavit suggested that on 18 October 2006 the applicants had failed to comply with directions made by consent before his Honour Justice Marks, which had resulted in further delay in processing the applications.
22 The respondent in advancing its contention that the delay in the proceedings caused by the applicants should limit any awards of interest payable on the principal sums, relied on a passage from a Federal Court decision of HK Frost Holdings Pty Ltd (in liq) v Darvall McCutcheon (a firm) [1999] FCA 795 at [11]:
[11] . . . insofar as concerns a successful applicant who has been guilty of unreasonable delay, the view I am prepared to follow in the absence of binding authority is that the period for which the interest award is made can properly be adjusted if to allow interest for the whole period for which it could otherwise be ordered would work an injustice to the respondent in the circumstances: cf Clarke v Foodland Stores Pty Ltd , above, at 400. Such would seem to be consistent with the policy of the s 51A(1) in that an applicant that has been held out of the benefit of its money because of its own unreasonable actions should not be allowed as of course to cast the effects of a `self-inflicted burden' onto the respondent: Keithara Pty Ltd v J G L Holdings Pty Ltd (Supreme Court of Victoria, Smith J, 6 December 1994, unreported).
23 Based on the passage quoted above, the respondent submitted that it would be "just in the circumstances of the case" for any awards of interest to be heavily discounted owing to the unreasonable delay on the part of the applicants.
24 In Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Schmidt J at [47] made the following observation with regard to an award of interest on a principal sum ordered to be paid under s 106 of the Act:
[47] It follows that the awarding of an interest component is a matter of discretion to be exercised in the particular circumstances of the case in order to discharge the statutory duty, now arising under s 106(5), to make a monetary order in connection with the contract varied, "just in the circumstances of the case". This will not necessarily require that interest at commercial rates and for commercial reasons be awarded in every case, even those with a commercial flavour.
25 In my view although the material before the Court contains some indications of delay on the part of the applicants in prosecuting their applications, it is not of sufficient severity to warrant limiting the amounts of interest that may otherwise be awarded on the ground of delay. One factor which has influenced my decision in this regard is that the respondent's Notice of Motion filed in July 2006 seeking orders that the applicants' claims be struck out for want of prosecution was withdrawn by agreement between the parties. Thereafter there was some indication of further delay but otherwise both matters progressed to a hearing which commenced on 30 April, 2007.
26 I also rely upon and adopt my remarks, as relevant to the issue of whether an interest payment on a principal sum ordered to be paid under s 106 should be limited, in John Sheiles v TB Clarke at [31]:
[31] While it cannot be disputed that there are strong public policy reasons for providing incentives to litigants to end the litigation as soon as possible (as to which see Leichhardt Municipal Council at [14] [44]), it must be borne in mind that the present applicant was successful in his claim under s 106. In the passage earlier extracted from the judgment of Santow JA in Leichhardt Municipal Council (at [45]), his Honour remarked that depriving a successful plaintiff (or applicant) of costs and awarding them in favour of a defendant (or respondent), "should ordinarily be sufficient sanction against a plaintiff failing to give adequate consideration to a defendant's offer". The consequences to the present applicant will be that he must pay the respondent's costs on a party and party basis from the day after the offer of compromise was made notwithstanding that he has been successful on his claim. This should operate as a sufficient sanction against the failure to give adequate consideration to the offer of compromise and should satisfy the public policy objectives underlying the rejection of offers of compromise that should have been accepted.
27 In the alternative the respondent relied on the application of s 100(4) of the Civil Procedure Act in advancing its contention that the applicants should not be awarded interest beyond the date that the respondent made its offers of compromise.
28 In John Sheiles v TB Clarke (at [30]) I found that s 100 (4) was confined in its terms to proceedings for damages and therefore had no application to monetary orders made under s 106 of the Act. For convenience the relevant passage from the judgment is extracted below:
[30] The respondent also submits that s 100(4) of the Civil Procedure Act 2005 should be applied by the Court in determining the amount of interest that is to be awarded to the applicant under s 106(5). Under that section the Court may not order payment of interest from the period when, "an appropriate settlement sum", was offered by the defendant unless the special circumstances of the case warrant the making of such an order. "Appropriate settlement sum" is defined in s 100(5). It means, in effect, the amount offered by way of settlement offer if the actual judgment amount does not exceed it by more than 10%. The section, however, is confined in its terms to proceedings for damages and does not therefore apply to proceedings under s 106 of the Act. So much has been conceded by the respondent, whose reliance on the section is confined to what it has described as underlying public interest considerations, namely the encouragement of an appropriate settlement sum without the need to use the resources of the Court and without incurring unnecessary legal costs.
29 For the same reasons I find that s 100 (4) has no application to the present proceedings.
30 I propose therefore to make orders that the respondent pay interest on the principal sums awarded in the judgment from the date each summons for relief was filed until the date of judgment.
Set-off
31 The respondent also submitted that it is "appropriate and fair" for the Court to make an order that it set-off the costs ordered to be paid by the applicants to the respondent against the costs of the applicants until 2 September 2003 as agreed or assessed on a party and party basis.
32 The basis upon which the Court was asked to make such orders was that the costs of the respondent incurred after the making of the offers of compromise, "will significantly exceed the costs of the applicants". This proposition proceeded upon an assumption on the part of the respondent that the applicants' costs incurred from 15 and 16 December 2002 respectively until 2 September 2003, on a solicitor-client basis,
"can be assessed to be [a] relatively low amount (say in the order of $5,000 to $10,000) . . . because the substantial part of this period was taken up by conciliation and did not involve much, if any substantive preparation for the hearing."