Supreme Court
Action No. 340 of 1996
25th February, 2000.
Shanks, J.

Barrow & Williams for the Plaintiff
Barrow & Co. for the Defendant

Assessment of damages on counterclaim - Interest rate applicable.

J U D G M E N T

This is an assessment of damages on a counterclaim brought by Lorant Szaz against Ronald Zent. The counterclaim arises from a breach by Mr. Szaz of a contract to sell two acres of land. The contract was dated 20th November, 1989. Mr. Zent failed to convey the land and Mr. Szaz therefore lost his bargain. He was sought to claim the loss of the value of the land as at the end of 1995. But the only evidence before me was a report put in by Mr. Zent which showed that the land was in fact worth less at that state than the price that Mr. Szaz was to pay which was $30,000.00 U.S. It therefore seems to me that his claim for loss of the value of the land was hopeless.

He is therefore confined to claiming repayment of the monies he paid and his expenses associated with this contract. The total of his expenses and the monies he paid is $30,312.50 U.S. That money had been paid and those expenses incurred by about July of 1992 and it seems to me that he should have interest in principle running from mid 1992 and it is accepted that an appropriate rate for the whole period down to trial would be 12% which is the rate specified in the contract.

In June 1996, the Plaintiff, Mr. Zent, tendered a cheque being a refund of all the money paid under the contract; that is, $25,000.00 U.S. odd.

There is a dispute as to whether that cheque was tendered by way of full and final settlement or whether it was simply tendered without any conditions. I cannot really resolve that dispute today and in any event I think it is not always unreasonable of lay client to take the view that they will not accept a cheque for part of their loss even if it is unconditionally tendered when they have another claim, though Mr. Barrow fairly makes the point that no claim was made until the counterclaim in the action. I think the only fair way to deal with it today is to say that Mr. Szaz shall have a full 12% interest from 1992 to 1996; that is, four years at 12% and then he should have a half of that, i.e. 6%, to cover the period from mid 1996 to today (February 2000) and that rate will continue in any event under the Supreme Court Act.

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