BRYCE v TAPALIS; BRYCE v KEFFEL; M BRYCE and ASSOCIATE INC v TAPALIS [1989] NSWCA 28

BRYCE v TAPALIS; BRYCE v KEFFEL; M BRYCE and ASSOCIATE INC v TAPALIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MCHUGH JJA 12 October 1988, 9 December 1988, 10 February 1989

[1989] NSWCA 28

DAMAGES — interest — delay — injuries in 1976; trial in 1987 — proper approach to award of interest under Supreme Court Act 1970 s94(1) — principles applicable — rate of interest applicable — held: (by the Court) No error had been shown in the approach by the Master to the award of interest on the damages and to the discount of that award by reference to the delay in bringing the proceedings. Bennett v Jones [1977] 2 NSWLR 355 applied; Australian Consolidated Press v Driscoll (1988) Aust Tort Reps 80-175 considered; (2) (by McHugh JA, Mahoney JA concurring; Kirby P dissenting) No error was shown in the application of commercial rates of interest as this was required by the decision of the High Court in Cullen v Trappell (1979-80) 146 CLR 1, 21.

LAW REFORM — interest — rate of award of — risk of double compensation — remarks by all members of the Court on the desirability of awarding a true interest rate as distinct from interest at a commercial rate which involves double compensation.

COURTS AND JUDGES — precedent — binding rule — authority of the Court of Appeal to depart from observations expressed in a judgment of the High Court of Australia — whether part of binding rule in decision — held: (McHugh JA, Mahoney JA concurring; Kirby P dissenting) The statement by Gibbs J in Cullen v Trappell (1979-1980) 146 CLR 121 that "where interest is allowed it should be allowed at ordinary commercial rates" is part of the binding rule in Cullen v Trappell and that fact, together with the practice of the Court, precludes the Court from substituting another rate of interest, even if it would otherwise favour doing so. Supreme Court Act 1970, s94(1).