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. Mr Drake says, well that is all well and good but my client could have recovered a much larger sum than $6,350 if she had invested the funds and to restrict her to a claim of about $6,000 would be quite unfair. He also points out that the plaintiff sought to invest the monies in the most tax advantage manner and that he probably did not recover the highest return on the sum involved. The Court is in a difficult position. It seems to me it cannot satisfy either party's claims without doing a deal of injustice to the other. It is a situation where the broad demands of justice require that the Court take what has been described as a pragmatic approach in an endeavour to do justice to each of the parties. If I were to award the whole amount to the defendant, I would be unfair to the plaintiff who having done his best would still be considerably out of pocket. On the other hand, if I simply order the repayment of the amount that the plaintiff earned, I would be doing an injustice to the defendant who could undoubtedly have earned much more if she had retained the monies. 2 UNREPORTED JUDGMENTS I interpose here that I have referred to the defendant as a female person but the interested party is the GIO. There is no scientific approach to the question. I think the ends of justice are best served by taking a line somewhere near the halfway mark between the two claims and in those circumstances I propose to order that the plaintiff repay to the defendant, interest in the sum of $11,000. There will be no order as to costs. The plaintiff is to have two months to pay. Orders accordingly.