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Kiribati Shipping Services Ltd v Waysang Kum Kee [2011] KICA 9; Civil Appeal 12 of 2011 (31 August 2011)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION

HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 12 of 2011

BETWEEN

KIRIBATI SHIPPING SERVICES LTD
APPELLANT

AND

WAYSANG KUM KEE
TENETI KUM KEE
RESPONDENTS

Before: Paterson JA
Williams JA
Barker JA

Counsel: Taoing Taoaba for appellant
Batitea Tekanito for respondents

Date of Hearing: 27 August 2011
Date of Judgment: 31 August 2011

JUDGMENT OF THE COURT

1. The respondents sued the appellant in the High Court for the balance of purchase price of a vessel. The High Court on 17 March 2009 awarded them $403,000. A subsequent appeal failed.
   
2. On 14 January 2011, the Chief Justice awarded the respondents $15,131.25 being interest at 5% from 17 March 2009 to date of practical payment, said to have been 15 December 2009. The record shows that the figure for calculation of interest had been agreed to by counsel for the appellant who, although despite having been told firmly by the Chief Justice that there was no basis for resisting the order, continued to oppose the order.
   
3. In this Court, counsel for the appellant pleaded res judicata and that the Court should not award interest on interest since the original judgment was inclusive of interest.
   
4. The Court has already in Civil Appeal 11/11 characterised these arguments as unsustainable. Res judicata has no place here. The law awards interest on a judgment debt, regardless of whether interest was encompassed within that judgment.
   
5. The Court refers to its discussion of the power to award interest on judgment debts set out in its judgment in Civil Appeal 11/11. It does not need repetition.
   
6. The only essential factual variation from the essential facts in that appeal is that the writ of execution did not include in the amount owing the post-judgment interest.
   
7. The Court does not see that how circumstance makes any difference. True, the respondent could not have levied execution for a sum in excess of that shown in the execution documents. However, the amount of post-judgment interest could not be finally determined until payment had been made and therefore it could not have been included. Payment clearly had not been made at the time when the execution process started.
   
8. The only other point is that counsel for the appellant claimed that payment had taken place a week before 15 December 2010. However, the Chief Justice was at pains to record that the actual calculation was agreed upon by both counsel on the basis that the end date was 15 December 2010. The appellant cannot now resile from that agreement.
   
9. The appeal is dismissed. Costs to the respondent $500 plus disbursements as fixed by the Registrar.
   

Paterson JA

Williams JA

Barker JA