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A-465-79
Davie Shipbuilding Limited and Canada Steam ship Lines Limited (Respondents) (Plaintiffs)
v.
The Queen (Defendant)
and
Robert Morse Corporation Limited and Colt Industries (Canada) Ltd. (Appellants) (Third Parties)
Court of Appeal, Pratte, Urie JJ. and Lalande D.J.—Montreal, November 23, 1983; Ottawa, January 12, 1984.
Practice — Judgments and orders — Motion to have Court reconsider terms of pronouncement of judgment under R. 337(5)(b) — Judgment overlooking claim for interest lost when bonds deposited as security for performance of contract sold pursuant to breach of warranty — Whether claim properly brought in third party proceedings — Failure of Court to exercise discretion concerning award of pre-judgment interest — Date interest to run from — Rate applicable — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 35 — Interest Act, R.S.C. 1970, c. I-18 — Federal Court Rules, C.R.C., c. 663, RR. 337(5)(b), 474 — P.C. 1970-4/2.
The cross-appeal from the judgment of the Trial Division in the third party proceedings in this case was overlooked or accidentally omitted in the judgment of this Court. This cross- appeal concerns a claim for the interest lost when bonds deposited as security for the performance of a shipbuilding contract were sold, pursuant to a breach of warranty for which the appellants were held liable, to replace a damaged engine.
Held, the cross-appeal should be allowed. Since there is a connection of subject-matter between the cause of âction in the counterclaim in the main action and the claim for redress against the third party, and since the latter claim arose out of a contractual relationship which was anterior to the main action, the claim for lost interest is properly brought in the third party proceedings.
The Court has discretionary power to award pre-judgment interest. According to the principles of admiralty law which apply in this case, interest is awarded as an integral part of the damages suffered. The Trial Judge herein did not exercise his discretion one way or the other even though there were no special circumstances which might have precluded the Court from awarding the appellants the interest lost. The appellants are therefore entitled to the payment of interest from the various dates upon which the bonds were sold by the defendant, to the date of judgment in the Trial Division.
The rate to be fixed in any given case is just as much discretionary as is the award of pre-judgment interest. In this case, for the bonds disposed of before maturity, the rate should be that which the bonds would have borne until maturity and, from the maturity date to the date of judgment, interest should be paid on the principal sum at a rate which is the average, during that period, of ninety per cent of the average tender rates for three-month Treasury bills.
CASES JUDICIALLY CONSIDERED
APPLIED:
Allan v. Bushnell T.V. Co. Ltd., [1968] 1 O.R. 720 (C.A.); Canadian General Electric Company Limited v. Pickford & Black Limited, [1972] S.C.R. 52; Drew Brown Limited v. The Ship "Orient Trader" et al., [1974] S.C.R. 1286; Bell Telephone Co. v. The "Mar- Tirenno" et al., [1974] 1 F.C. 294 (T.D.); Jefford and another y Gee, [1970] 1 All E.R. 1202 (C.A.); The Funabashi Sycamore Steamship Co Ltd y Owners of the Steamship White Mountain and another, [1972] 2 All E.R. 181 (Q.B.D.).
DISTINGUISHED:
Iron Mac Towing (1974) Ltd., et al. v. Ships North Arm Highlander, et al. (1979), 28 N.R. 348 (F.C.A.).
REFERRED TO:
Cremer and others y General Carriers SA, [1974] 1 All E.R. 1 (Q.B.D.); B.P. Exploration Co. (Libya) Ltd. v. Hunt, [1979] 1 W.L.R. 783 (Q.B.D.); Tate & Lyle Food and Distribution Ltd y Greater London Council and another, [1981] 3 All E.R. 716 (Q.B.D.).
COUNSEL:
Joan Clark, Q.C. and J. Gauthier for
respondents (plaintiffs).
No one on behalf of defendant.
Gerald Barry for appellants (third parties).
SOLICITORS:
Ogilvy, Renault, Montreal, for respondents (plaintiffs).
Deputy Attorney General of Canada for defendant.
Gasco, Linteau, Grignon & Barry, Montreal, for appellants (third parties).
The following are the reasons for order ren dered in English by
URIE J.: This is an application brought pursuant to Rule 337(5)(b)' of the General Rules and Orders of the Court [Federal Court Rules, C.R.C., c. 663] by the respondents in the appeal from the judgment of the Trial Division in the third party proceedings, in respect of their cross- appeal from that judgment, which cross-appeal, they allege, was overlooked or accidentally omitted in the judgment of this Court rendered on the 13th day of September, 1983 [A-482-79, not yet reported].
It is not disputed that in its counterclaim the appellants (Davie and C.S.L.) [in appeal No. A-482-79] claimed interest lost on the amounts expended by the respondent [defendant] for the replacement of the damaged engine which amounts were derived from the sale of the bonds deposited by them as security for the performance of their contract.
The learned Trial Judge did not deal with the claim for interest lost either in his reasons for judgment or in the judgment itself. As a conse quence, in the appeal by Morse and Colt from the judgment of the Trial Division in the third party proceedings counsel for Davie and C.S.L. filed a document entitled "Notice Relating to Appeal from the Trial Division Third Party Proceedings", in which it was stated that upon the hearing of the third parties' appeal
... the Respondents intend to contend that the said Judgment be varied by adding that in addition to the sum of $322,589.23 the Respondents (Plaintiffs) do recover from the Appellants (Third Parties) interest on the said sum calculated from the respective times of appropriation and disposal of Respondents' bonds by the Defendant ....
' Rule 337. .. .
(5) Within 10 days of the pronouncement of judgment under paragraph (2)(a), or such further time as the Court may allow, either before or after the expiration of that time, either party may move the Court, as constituted at the time of the pro nouncement, to reconsider the terms of the pronouncement, on one or both of the following grounds, and no others:
(b) that some matter that should have been dealt with has been overlooked or accidentally omitted.
Clearly, this notice to vary is in the nature of a notice of cross-appeal and this proceeding will be described hereinafter as a cross-appeal.
A perusal of the judgment and of the reasons for judgment discloses that there can be no doubt that for a variety of reasons, (the nature of which can only be by way of explanation for the oversight rather than a denial thereof and which are, thus, irrelevant for purposes of this application), the cross-appeal by Davie and C.S.L. in the third parties' appeal was not dealt with. The motion, therefore, in my opinion, is one which clearly falls within the scope of Rule 337(5)(b).
It should not require reference to any authority to state that the failure of a trial judge to deal with an important matter raised by any party at trial, whether or not it involves the exercise of his discretion, ought not to preclude an appeal court from dealing with the matter, when, as here, the evidence and the reasons provide the Court with all information necessary to make a decision there on. In my opinion, the total silence of the Trial Judge on the claim for interest does not indicate that he had refused to exercise his discretion, as counsel for Morse and Colt argued. Rather, it indicates to me at least, that he overlooked it in its entirety. Since the record in this case is such that this Court is in as good a position as the Trial Judge to do what he omitted to do, I propose to decide upon the validity of the claim and if it is found to be a proper one, the method to be used in the calculation of the quantum thereof.
It should first be pointed out that the question of whether or not the counterclaim in the action out of which the main appeal (file No. A-482-79) arose and the third party proceedings which arose therefrom, were within the jurisdiction of the Trial Division, was disposed of in that Division by a judgment of Gibson J. 2 on a preliminary determi nation of a question of law made pursuant to Rule 474. He held that the Court had jurisdiction to hear and determine those issues. So far as we were made aware, no appeal was taken from that judg-
2 [1979] 2 F.C. 235 (T.D.).
ment, nor was any question as to jurisdiction raised in this appeal.
During the course of the hearing, the Court indicated to counsel that we were troubled by the fact that paragraph 16 of the statement of claim, as well as the prayer for relief, alleged that the
Plaintiffs are entitled to be indemnified by the third parties against all liability in respect of the alleged failure of the Port Inner (No.2) Main Engine ... and to the extent of any judgment interest and costs for which the plaintiffs may be liable to the defendant.... [Emphasis added.]
The Court's concern was that by its nature, and the pleadings, a third party claim might be limited to the amount for which Davie and C.S.L. were found to be liable to the respondent and might not permit Davie and C.S.L.'s claim for lost interest. Counsel was unable to refer us to any jurispru dence on that subject and, while I was unable to find any cases in the Federal Court to assist in answering the question, the decision of the Ontario Court of Appeal in Allan v. Bushnell T.V. Co. Ltd. 3 as well as a number of other Ontario cases I found to be helpful.
In that case a motion had been brought to strike out a third party notice on the ground that the main action sounded in tort while the third party issue sounded in contract. Laskin J.A. (as he then was) found there to be no substance to this objec tion. More importantly, for the situation in this case, he had the following to say about the common thread which must exist in both the main action and the third party proceeding to permit the latter to proceed. I quote from page 723 of the report:
The proper approach, in my opinion, is that reflected in the following statement by Middleton, J., in Swale v. C.P.R., supra, at p. 505 O.L.R. p. 93 D.L.R.:
There is no foundation for the suggestion sometimes made, that the right of indemnity must be for the whole of the plaintiff's claim—it is enough if that right exists for any separate or separable part of the plaintiff's claim.
3 [1968] 1 O.R. 720 (C.A.).
Drabik v. Harris, [1955] O.W.N. 590, in this Court expresses the principle of the Miller case in different words but with the same effect, as follows (at p. 591):
... it must appear that the measure of damages in the proceedings as between the defendant and the proposed third party is the measure of damages as between the plaintiff and the defendant.
If this is intended to set up a requirement of exactness of amount, then I respectfully disagree.
What, in my view, is central to resort to third party proceed ings is that the facts upon which the plaintiff relies against the defendant should issue out of the relations between the defend ant and the third party. I prefer this mode of expression to statements in the cases that there must be a common question or common questions between the plaintiff and the defendant and between the defendant and the third party. Since the "relief over" of which Rule 167 speaks means relief over in respect of the plaintiff's claim (see Dipasquale et al. v. Mus- catello, [1953] O.W.N. 1001 at p. 1004), there must be a connection of fact or subject-matter between the cause of the action upon which the plaintiff sued and the claim of the defendant for redress against the third party; and, such claim would ordinarily arise out of relations between the defendant and the third party anterior to those between the plaintiff and the defendant which precipitated the main action.
Needless to say, when a third party notice is challenged the Court is not concerned to try the merits under the pleadings; and unless it be too plain for dispute, the substantive rights of the parties must be left for adjudication at the trial. [Emphasis added.]
I think that the principle expressed in that quo tation is applicable to the third party claim for lost interest in this case. Since there is
(a) a connection of subject-matter between the cause of action in the counterclaim in the main action (namely, the warranty, the guarantee and
the security provided by the bonds for the due performance of the guarantee) and
(b) the claim for redress against the third party
(namely, the warranty and the guarantee) and the latter claim arose out of a contractual rela tionship between Davie and Morse which was anterior to the main action, the claim for lost interest which flows naturally from the connec tion is, as I see it, properly brought in the third party proceeding.
I now turn to the substantive questions.
1. As I have already found, this Court has the power to deal either with a matter overlooked by the Trial Judge or with a discretion which he
failed to exercise when, as here, there is sufficient material on the record to enable the Court to do what the learned Trial Judge failed to do.
2. The first question which is involved in the issue of lost interest is whether or not the Court has the power to award pre-judgment interest. Gibson J. in his preliminary determination of a question of law, supra, has found that the subject-matter of the third party proceeding is within the jurisdiction of the Court both on the basis that it is a question of maritime law within the meaning of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10] and is also really ancillary to the subject-matter of the main action which is within the jurisdiction of the Court. That being so, the principle of law relating to pre-judgment interest applicable in admiralty law as opposed to the common law principles relating thereto should apply. I need only refer to three cases. In Canadian General Electric Com pany Limited v. Pickford & Black Limited' Rit- chie J. at pages 56 and 57 stated the principle in this way:
The rule in the Admiralty Court is the same as that in force in admiralty matters in England, and in my view the position is accurately stated by Mr. Justice A. K. McLean [sic], sitting as President of the Exchequer Court, in the case of The Pacifico v. Winslow Marine Railway and Shipbuilding Company ([1925] 2 D.L.R. 162 at 167; [ 1925] Ex. C.R. 32), where he said:
The principle adopted by the Admiralty Court in its equitable jurisdiction, as stated by Sir Robert Phillimore in The Northumbria (1869), 3 A. & E. 5, and as founded upon the civil law, is that interest was always due to the obligee when payment was delayed by the obligor, and that, whether the obligation arose ex contractu or ex delicto. It seems that the view adopted by the Admiralty Court has been, that the person liable in debt or damages, having kept the sum which ought to have been paid to the claimant, ought to be held to have received it for the person to which the principal is payable. Damages and interest under the civil law is the loss which a person has sustained, or the gain he has missed. And the reasons are many and obvious I think, that a different principle should prevail, in cases of this kind, from that obtaining in ordinary mercantile transactions.
I think that in the exercise of the equitable jurisdiction of this Court, and in view of the fact that the Admiralty Court has always proceeded upon other and different principles from that on which the common law principles appear to be founded, that the plaintiff is in this case entitled to the claim of interest as allowed by the Court below, in its formal order for judgment.
[1972] S.C.R. 52.
It is thus well settled that there is a clear distinction between the rule in force in the common law courts and that in force in admiralty with respect to allowing a claim for interest as an integral part of the damages awarded.
This principle was followed in the Supreme Court of Canada decision in Drew Brown Limited v. The Ship "Orient Trader" et al. 5
Addy J. in the Trial Division of this Court put the principle succinctly in Bell Telephone Co. v. The "Mar-Tirenno" et al.b at pages 311 and 312:
It is clear that this Court, under its admiralty jurisdiction, has the right to award interest as an integral part of the damages suffered by the plaintiff regardless of whether the damages arose ex contractu or ex delicto.
' ... interest in these cases is not awarded to the plaintiff as punitive damages against the defendant but as part and parcel of that portion for which the defendant is responsible of the initial damage suffered by the harmed party and it constitutes a full application of the principle of restitutio in integrum.
There are other English, Canadian and Ameri- can authorities to the same effect. The principle seems to be accepted as a matter of discretion for the Court, the exercise of which should be refused only in exceptional cases. The Trial Judge did not exercise his discretion in this case one way or the other. I see no exceptional circumstance which might preclude the Court from exercising it in the normal way, by awarding the appellants the inter est lost. This is my view notwithstanding the fact that had the appellants been successful in their main appeal upon the acceptance by the Court of their theory as to the cause of the bearing failure, they would not have been entitled to interest from the respondent by virtue of section 35 7 of the Federal Court Act, there being nothing in the contract between the appellants and the respond ent stipulating payment of interest. That theory having been rejected it is my view that the normal principle prevailing in admiralty cases as to the award of pre-judgment interest should apply.
5 [1974] S.C.R. 1286, at p. 1335.
6 [1974] 1 F.C. 294 (T.D.).
7 35. In adjudicating upon any claim against the Crown, the Court shall not allow interest on any sum of money that the Court considers to be due to the claimant, in the absence of any contract stipulating for payment of such interest or of a statute providing in such a case for the payment of interest by the Crown.
3. The next question to be answered is from what date or dates should interest be payable? The appellants' alternative positions are that interest should run
(a) from the various times that bonds were sold by the respondent to pay for the cost of replac ing and installing the engine, or
(b) from the date which the third parties were given formal notice of the sale of the bonds, November 18, 1974.
In my opinion, the appellants are entitled to the payment of interest from the various dates upon which the bonds were sold by the respondent, to the date of judgment in the Trial Division. The third parties had, as early as October, 1970, been notified of Davie's claim under its guarantee and warranty but they had refused to concede liability. They thereby set in motion the chain of events leading to the eventual sales from time to time of the bonds thus depriving Davie and C.S.L. of the income derived from the money represented by the bonds. Therefore, in my opinion, they should be liable for the loss of interest from the dates of the sales, the respondent having given credit for accrued interest to Davie and C.S.L. up to those dates.
4. The final question is what rate of interest should be applied? Davie and C.S.L. claimed in their supplementary memorandum that it should be a rate equivalent to the commercial or prime bank rates which have prevailed from time to time until the date of judgment. They attempted to file evi dence relating thereto at the hearing of this cross- appeal although no such evidence had been adduced at trial. It is not without significance, in my view, that in their original submissions in support of the cross-appeal, interest was claimed "at the rate of 5% per annum pursuant to sections 3 and 14 of the Interest Act ...".
This Court considered the question of the rate of pre-judgment interest to be awarded where no evidence had been adduced as to prevailing inter est rates in Iron Mac Towing (1974) Ltd., et al. v. Ships North Arm Highlander, et al. 8 and conclud-
8 (1979), 28 N.R. 348 (F.C.A.), at pp. 359-360.
ed that the rate prescribed in the Interest Act, R.S.C. 1970, c. I-18, namely 5%, should apply.
It was urged by counsel for Morse and Colt that, in the circumstances of this case a similar conclusion should be reached. In my view that result should not necessarily follow. The rate to be fixed in any given case just as much involves the exercise of the Court's discretion as does the deci sion as to whether or not pre-judgment interest should be awarded at all. In the Iron Mac the Court concluded that, in all of the circumstances, including the absence of any material evidence to assist it in fixing the rate, the so-called legal rate of 5% should be applied. However, no general rule applicable in all cases where no evidence is adduced as to commercial lending, borrowing or other interest rates was laid down in that judg ment. To have done so would have improperly fettered the exercise of the Court's discretion in subsequent cases.
In the case at bar, in compliance with its con tractual obligation, C.S.L. deposited with the Department of Transport the bonds referred to in paragraph 4 of the amended statement of claim or declaration. According to paragraph 13 of that document there were substituted for those bonds Government of Canada bearer bonds having a total face value of $360,000 payable October 1, 1976 and bearing interest at the rate of 5 1 / 2 %o per annum payable half yearly. It seems clear, then, that whatever rate of interest may be applicable after October 1, 1976 until that date, the rate should not exceed 5 1 / 2 % per annum. This is not to say that that is the rate which should be fixed to that date. It may be relevant but it is not neces sarily determinative for the purpose of fixing the applicable rate for pre-judgment interest. The appellants chose to put up the bonds rather than some other form of security. Morse and Colt were not privy to that choice with the result that vis-à- vis them the rate payable thereon is not necessarily relevant and binding upon them in fixing their liability for lost interest.
However, in view of the fact that Davie and C.S.L. failed to adduce evidence to provide the
Court with any foundation for determining the rate to be charged, what rate should apply in the circumstances of this case? The practice in the English courts in respect of the fixing of pre-judg ment interest provides some helpful guidance in, such circumstance. The line of cases commencing with Jefford and another y Gee 9 are apposite.
In England, prior to 1970, the power of the court to award pre-judgment interest in personal injury cases was by statute, discretionary. After 1970 it became compulsory. Since the Jefford case arose prior to 1970 the award was discretionary, but, as pointed out by Lord Denning M.R. at page 1205 of the report, the change in the statute in 1970 did not alter the principles the court would apply in awarding pre-judgment interest in person al injury cases.
With regard to the rate of interest to be paid he had the following to say at page 1210 of the report (a passage which has been referred to in subse quent admiralty as well as other cases):
It was suggested to us that, in principle, the rate of interest on a debt or damages before judgment should be the same as the rate after judgment. It would be anomalous if a defendant paid less interest after judgment than before it.
This argument would be acceptable if the rate of interest on a judgment debt were a realistic rate. But it is not so. It is only 4 per cent. It was so enacted in 1838 and has never been changed since. It should be changed. We are told that steps are being taken to increase it. But we do not think we should wait for this to be done. We ought to award a realistic rate, even if it does mean an anomaly. To go to the other extreme, it was suggested that bank rate should be awarded. That stands at 8 per cent. We cannot agree with this suggestion. Bank rate fluctuates too much.
A better guide is, we think, the rate which is payable on money in court which is placed on short term investment account. This is an investment which is made under the Administration of Justice Act 1965, ss 6,7, and the Supreme Court Funds Rules 1927 (rr 73 to 80). It was started in October 1965. It is said in the Supreme Court Practice 1970 to be:
.. particularly suitable for money which is unlikely to remain invested for a long time and which may have to be
9 [1970] I All E.R. 1202 (C.A.).
withdrawn, in whole or in part, at comparatively short notice."
The rate of interest is fixed from time to time by rules made by
the Lord Chancellor. The rates so far are as follows. [Footnotes omitted.]
Then Lord Denning M.R. set out the rates from October 1, 1965, which was 5% to March 1, 1970, by which time the rate had increased to 7%, and continued [at same page]:
The period in this case [Jefford's] is 1967 to 1969. We think that over that period we should take a mean or average of the rate obtainable on short term investment account. This would
be 6 per cent.
Two years later Dunn J. in the Admiralty Court in The Funabashi Sycamore Steamship Co Ltd y Owners of the Steamship White Mountain and another 10 in following Jefford's case had this to say:
It is a matter for the discretion of the court in each case and there is no distinction in principle between interest on a limita tion fund and interest on damages for personal injuries. The case of Jefford y Gee is binding on all divisions of the High Court and in the normal case the Admiralty Court will follow the approach of the Court of Appeal in Jefford y Gee and take the mean or average of the rate obtainable on short-term investment account from the date of the casualty to the date of payment into court or payment. It is likely that in future that rate will be the same as the rate of interest on a judgment debt. If that be so, it matters not which rate the court takes; but the rate must be a realistic one. So in this case I take the mean or average of the rate obtainable on short term investment account during the relevant period. There may be exceptional cases where by reason of the conduct of one or other of the parties or by reason of other special circumstances the court in its discretion will adopt a different criterion for assessing interest on limitation fund. But there is nothing exceptional in this case. [Footnote omitted.]
In commercial cases in England different con siderations than those prevailing in personal injury cases such as Jefford's case, were held to apply in cases such as Cremer and others y General Carri ers SA," B.P. Exploration Co. (Libya) Ltd. v. Hunt 12 and Tate & Lyle Food and Distribution Ltd y Greater London Council and another. 13
10 [1972] 2 All E.R. 181 (Q.B.D.), at p. 185. [1974] 1 All E.R. 1 (Q.B.D.), at p. 17.
12 [1979] 1 W.L.R. 783 (Q.B.D.), at p. 849.
13 [1981] 3 All E.R. 716 (Q.B.D.), at p. 722.
While in Canada there is no federal statute comparable to the English statute in respect of pre-judgment interest, I am inclined to the view that in the circumstance of this case, the method used in the rate determination in Jefford's case is the most sensible so that a rate ascertainable by reference to that payable on moneys paid into Court should be applied. P.C. 1970-4/2, reading as follows, was enacted on January 14, 1970 and has continued in force to the present time:
P.C. 1970-4/2
CANADA (T.B. REC. 692984)
PRIVY COUNCIL
AT THE GOVERNMENT HOUSE AT OTTAWA
WEDNESDAY, the 14th day of JANUARY, 1970
PRESENT:
HIS EXCELLENCY
THE GOVERNOR GENERAL IN COUNCIL
His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, the Minister of Finance and the Treasury Board, is pleased, pursuant to the Financial Administration Act, to approve in respect of moneys heretofore and hereafter paid into the Exchequer Court, and on its Admiralty side, and transferred or paid into a special account in the Consolidated Revenue Fund as special purpose moneys under the Financial Administration Act, that, as fixed by the Minister of Finance,
1. interest be allowed and paid thereon from the Consolidat ed Revenue Fund semi-annually on September 30 and March 31 in each year, and,
2. the rate of such interest be the rate that is equal to nine-tenths of the monthly average of tender rates for three- month Treasury bills and calculated on the minimum month ly balance.
Accordingly, every month, the Court is notified by the Minister of Finance of the precise figure for 90% of the tender rates for three-month Treasury bills. The rate applicable for each month since the various dates upon which bonds were appropriated is easily obtainable from the Registry of the Court and is shown in Appendix "A" hereto. The average rate during the period is thus ascertained, and is the rate which should be used to calculate the interest payable by Morse and Colt on the face values of the bonds appropriated from time to time for the purpose of replacing the damaged engine. Since the rate so obtained exceeds 5 1 /%, it is the rate which should be applied only subsequent to October 1, 1976. Until that date, interest should be calculated at the rate of 5 1 / 2 %, the rate borne by
the bonds. I have selected this notwithstanding that Morse and Colt were not privy to the arrange ment to deposit the bonds as security rather than cash. I have done so because that rate represents the real loss of interest by Davie and C.S.L. until October 1, 1976, if we assume, as we must because of the absence of evidence to the contrary, that they would have held the bonds to maturity had they been released upon fulfillment of the contract with the respondent.
In the result, then, the judgment of the Court dated September 13, 1983 should be varied by adding the following paragraph thereto and by numbering as 1 the sole paragraph in the judgment as it presently stands:
2. The cross-appeal is allowed and the judgment of the Trial Division dated June 29, 1979 is varied by adding to paragraph 4 thereof the following:
"together with interest at the rate of 5 1 / 2 % per annum on the sums hereafter set out from the dates specified to October 1, 1976:
(a) on $103,082.19 from January 11, 1972;
(b) on $25,001.03 from February 8, 1972;
(c) on $50,275.51 from March 7, 1972;
(d) on $150,242.77 from October 10, 1972 to January 14, 1974; and
(e) on $144,230.50 being $150,242.77 less $6,012.27 remit ted to Davie and C.S.L. by the respondent on January 14, 1974, from that date;
From October 1, 1976 to the date of judgment, June 29, 1979, interest on the principal sum of $322,589.23 shall be paid at the rate of 7.47% which is the average, during the said period of ninety per cent of the average tender rates for three-month Treasury bills."
In all the circumstances, I do not believe that there should be additional costs arising from this notice of motion for reconsideration of the pronouncement.
PRATTE J.: I agree.
LALANDE D.J.: I agree.
* * *
APPENDIX "A"
INTEREST RATES FOR THE PERIOD OCTOBER 1, 1976 tO JUNE 29, 1979
Interest based on:
90% of average of three-month Treasury bills
October 76 6.92
November 76 6.54
December 76 6.41
January 77 6.17
February 77 5.29
March 77 5.83
April 77 6.79
May 77 6.53
June 77 6.36
July 77 6.41
August 77 6.45
September 77 6.39
October 77 6.47
November 77 6.52
December 77 6.47
January 78 6.43
February 78 6.51
March 78 6.86
April 78 7.36
May 78 7.30
June 78 7.41
July 78 7.59
August 78 7.89
September 78 8.08
October 78 8.57
November 78 9.24
December 78 9.37
January 79 9.70
February 79 9.71
March 79 9.80
April 79 9.76
May 79 9.75
June 79 9.74
7.47% average
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.