PERRI v FLAVELL and ANOR [NO 2] [1995] NSWCA 366

PERRI v FLAVELL [No 2] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P and POWELL JA 2 August 1995, 20 September 1995

[1995] NSWCA 366

INTEREST — award of — long delay in hearing of appeal — whether interest over whole period of 8 1/2 years — whether discretion should be exercised to reduce period of interest — held: Interest payable over whole period.

Falkner v Bourke (1990) 19 NSWLR 574 (CA) appld.

PRACTICE AND PROCEDURE - interest Court of Appeal - delay in prosecuting appeal - practice of Court - penalty for delay - provision for keeping plaintiff out of money - proper approach of the Court discussed.

INTEREST - long delay in hearing of appeal - delay of 8 1/2 years - solicitor misunderstand nature of appeal - mistakenly believes evidence can be given on appeal concerning post-judgment employment history of plaintiff- solicitor and plaintiff awaiting resolution of post-judgment employment uncertainties - failure to prosecute appeal with diligence - failure of defendant to move to strike out appeal for want of prosecution - defendant has use of unpaid judgment moneys - assignment and duration of interest - held: (Kirby P and Powell JA): Notwithstanding the delay on the part of the appellant, interest should be paid upon the unpaid part of the judgment (increased by the earlier order of the Court of Appeal) from the date of judgment until payment. Falkner v Bourke (1990) 19 NSWLR 574 (CA) applied; Ruby v Marsh (1975) 132 CLR 642 referred to; Bennett v Jones and Anor [1977] 2 NSWLR 355 (CA) considered.

Supreme Court Act 1970, s95.

ORDERS

8. Order that the respondent pay interest at the rate of 15.6% per annum upon that part of the judgment of $102,000 which was not paid on or after 12 November 1986 to the date of payment;

9. Order that the respondent pay the additional costs of the motion before the Court in respect of interest.