DIANNE HEATH v MERYL ISABELLE GORDON [1993] NSWCA 133

DIANNE HEATH v MERYL ISABELLE GORDON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 8 March 1993

[1993] NSWCA 133

Handley JA. In this matter Mr Petty, onbehalf of the appellant/claimant, moves that the appeal be dismissed with costs. Orders were also sought with a view to crystallising the appellant's liability under the judgment entered by Sharpe J and post-judgment interest under s 95 of the Supreme Court Act on that judgment.

Mr Monteith has appeared in difficult circumstances for the opponent, Miss Gordon. As a result of the proceedings he was able to receive instructions from Miss Gordon that she would accept cheques available from the Government Insurance Office for $95,562.21 being the balance of the original judgment and $55,476.45 for post-judgment interest on the judgment up to and including 17 February this year.

In my opinion: for reasons which have been sufficiently discussed during argument: there was no effective tender by the Government Insurance Office of cheques for these sums to Miss Gordon prior to 26 February 1993. In those circumstances: in my view the Government Insurance Office as the insurer of Dianne Heath: remains liable for interest under s 95 up to and including the 26 February despite having on 17 February posted cheques which included interest up to that date to the last known address of Miss Gordon. In these circumstances Iam able to make the following orders:- 1. I order that the appeal be dismissed at the request of the appellant with costs: including any reserved costs: up to and including 11 February 1993 when the respondent through her solicitor: declined to sign a consent order having that result. 2. I order that the respondent: Meryl Isabelle Gordon: pay the costs of the appeal since 11 February: including the costs of the notice of motion of | March. Costs to be set off. 3. I order that the appellant pay interest on the balance of the judgment under s 95 of the Supreme Court Act from and including 18 February 1993: to and including 26 February 1993: but shall not be liable for further interest thereafter. 4. I order that the additional interest for the period between 26 February 1993 be fixed at the sum of $265.09. 5. I order that the post-judgment interest under s 95 of the Supreme Court Act on the unpaid balance of the original judgment up to and including 17 February 1993 be fixed at the sum of $55:476.45.