DAWSON v HALL [1995] NSWCA 119

DAWSON v HALL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 20 February 1995

[1995] NSWCA 119

Clarke JA. This is an application by a defendant to recover interest on monies overpaid. Let me explain. The trial judge entered a judgment in favour of the plaintiff for a particular sum. The defendant sought a stay upon the ground that she proposed to appeal. That stay was granted upon terms that the defendant pay to the plaintiff $500,000. That sum was paid albeit late.

The appeal duly came on for hearing and in the result the appellant was successful and the plaintiff received a verdict of something slightly less than $400,000. In the end result he had to repay to the defendant about $101,000. The defendant now says, quite reasonably, that the plaintiff had possession of her money for a period of time and he ought to have to pay interest on that money, the benefit of which he had enjoyed.

Mr Torrington who appears here today for the plaintiff, accepts that that is a reasonable proportion and concedes that an order must be made for the payment of some interest. The amount of interest calculated in accordance with Court rates on the outstanding amount is agreed at $23,083.90. Mr Torrington has led evidence to show that the whole of the $500,000 was paid late and that, insofar as the sum of just under $400,000 was concerned, that attracted interested calculated at of course the court rates of $6,953.17. He says that ought to be brought into account and I think it is fair to say that Mr Drake appearing for the defendant has agreed with that proposition.

Accordingly the present claim is reduced to $16,130.73.

Mr Torrington then says that it would be quite unfair to make the plaintiff pay that sum back because using his best endeavours all he could recover from a slightly larger sum of $125,000 for the period in question was about $6,345. He says that to order the plaintiffto pay back the sum of over $16,000 would put him considerably out of pocket through no fault of his own.