CPA: ss58 & 59 – interest on judgment

Mules v Ferguson [2015] QCA 77

M McMurdo P, Applegarth & Boddice JJ
[6] Section 58(3) provides a wide discretion in relation to the awarding of interest. That discretion is to be exercised judicially, having regard to the whole of the circumstances. Those circumstances include that the applicant failed at first instance. The judgment at first instance was not provisional, pending the outcome of any appeal. There is no reason why the respondent should have been required to make commercial decisions about the retention of those monies on the basis the judgment may be overturned on appeal.

[7] The appellant has received the benefit of a substantial award of damages as a consequence of a successful appeal. Nothing in the respondent’s conduct, or the appellant’s circumstances justifies ordering that the respondent suffer the consequence of having to pay a significant additional sum by way of interest as a consequence of this Court ordering that its judgment operate from the date of the initial determination of this proceeding.

[8] Nothing in the conduct of the respondent, or in the appellant’s circumstances justifies the exercise of a discretion under s 58(3) which results in the judgment of this Court operating on a date earlier than the date upon which judgment in favour of the appellant was pronounced by this Court. Interest should only be payable from the date of this Court’s judgment, except on those components of the judgment which were the subject of an award of pre-judgment interest.

[9] The decisions in Nicol v Allyacht Spars Pty Ltd [No 2][1] and L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2][2] support that approach. Whilst additional interest in the case of past losses is appropriately payable pursuant to the discretion under s 58 of the Act, we would not exercise the discretion so as to vary the date from which the judgment is to take effect for the purposes of payment of post-judgment interest.

[10] Similarly, we would not exercise the discretion under s 59(2) to vary the date from which the judgment is to take effect. There is no relevant difference between s 59 of the Act and its predecessor, s 48 of the Supreme Court Act 1995 (Qld). That provision was interpreted as requiring, if the exercise of the discretion was to involve a varying of the date from which the judgment is to take effect, something more than the mere withholding of the money. There must be some “wrongdoing” or “unreasonable act”.[3] There are no such circumstances in the present case.

David Cormack – Brisbane Barrister & Mediator

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