Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Despot v Registrar-General of NSW (No 2) [2013] NSWCA 332 Hearing dates: On the papers Decision date: 10 October 2013 Before: Meagher JA; Ward JA; Bergin CJ in Eq Decision: (1) Amend order 5 made on 20 September 2013 to read: "Judgment for the appellant against Stelli for the sum of $91,086 plus pre-judgment interest of $23,148, that judgment to take effect on 15 April 2011." [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: INTEREST - calculation of pre-judgment interest - no question of principle Legislation Cited: Civil Procedure Act 2005, s 100 Cases Cited: Despot v Registrar-General of New South Wales [2013] NSWCA 313 Agusta Pty Ltd v Official Trustee in Bankruptcy As Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 Category: Consequential orders Parties: Ranko Despot (Appellant) Registrar-General of New South Wales (First Respondent) Roy Maalouf (Second Respondent) Stelli Pty Ltd (Third Respondent) Westpac Banking Corporation (Fourth Respondent) Dominic Carbone (Fifth Respondent) Joyce Azzi (Sixth Respondent) Sky Constructions Pty Ltd (Seventh Respondent) Representation: Counsel: J C Hewitt, J E Curtin (Appellant) Submitting appearance (First Respondent) K D Ginges (Second and Seventh Respondents) B J Gross QC, D J Williams (Third and Sixth Respondents) S Ipp (Fourth Respondent) J C Kelly SC (Fifth Respondent) Solicitors: Pamela J Enright Solicitor (Appellant) Gavin Bartier (First Respondent) Self-represented (Second and Seventh Respondents) Kheir Lawyers (Third and Sixth Respondents) Henry Davis York (Fourth Respondent) Colin Biggers & Paisley (Fifth Respondent) File Number(s): 2012/56421 Decision under appeal Jurisdiction: 9111 Citation: [2011] NSWSC 273 Date of Decision: 2011-03-31 00:00:00 Before: Macready AsJ File Number(s): 2009/298869 2009/298832 Judgment 1THE COURT: The Court delivered judgment in this appeal on 20 September 2013: Despot v Registrar-General of New South Wales [2013] NSWCA 313. The orders made included that there be judgment for the appellant against the third respondent, Stelli, for the sum of $91,086 plus pre-judgment interest for the period from 3 July 2008 (the date upon which completion of the relevant contract for sale occurred) to 15 April 2011. 2The Court also gave leave to the parties to make further submissions in relation to the calculation of that interest. 3Written submissions on that subject have been received from the appellant but not from any other party. 4The appellant submits that it was entitled to interest as of right under Special Condition 3.1 of the contract for sale. In that event it would not be entitled to interest under s 100 of the Civil Procedure Act 2005 because of s 100(3)(b) which provides that the section does not authorise the giving of interest on any debt in respect of which interest "is payable as of right": see Agusta Pty Ltd v Official Trustee in Bankruptcy As Trustee of Estates of Gustavo Ferella and Angelo Ferella [2009] NSWCA 129 at [39]-[44]. 5Relying on that contractual provision the appellant says that he is entitled to interest on the unpaid purchase moneys due on completion at 10 per cent per annum. 6Special Condition 3.1 provided: "Should the purchaser not complete this purchase by the completion date, without default by the Vendor, the Vendor is entitled to recovery from the Purchaser, as liquidated damages, payable on completion: 3.1 Interest on the balance of purchase money at the rate of 10 per cent (10%) per annum calculated at a daily rate from the completion date to the date of actual completion." 7That provision does not entitle the appellant to interest on any part of the purchase money which is not paid on the "completion date" as defined, if completion happens by that date. It provides for liquidated damages in the event that completion does not take place by that date. In that event interest is payable "to the date of completion". 8That is not the basis upon which the appellant claims interest at that contractual rate. The appellant claims interest on the unpaid part of the purchase price from the actual date of completion to the date of payment of that amount. He does not claim interest for any period up to the date on which completion actually occurred. 9Two things follow. First, the appellant is not entitled to interest for the period after 3 July 2008 under Special Condition 3.1. Secondly, the appellant is entitled to claim pre-judgment interest under s 100. 10The appellant's written submissions show that the Court's calculation of interest on that basis was not correct. 11The correct calculation of pre-judgment interest, taking into account the rates which prevailed before and following the commencement on 1 July 2010 of Practice Note SC Gen 16, is $23,148 and not $21,746 as calculated by the Court. 12Accordingly the Court makes the following further order: (1)Amend order 5 made on 20 September 2013 to read: "Judgment for the appellant against Stelli for the sum of $91,086 plus pre-judgment interest of $23,148, that judgment to take effect on 15 April 2011." ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2013