Cite as: Hargrove v. Swim, 1999 NSSC 12 1997 S.H. No. 142151 IN THE SUPREME COURT OF NOVA SCOTIA
BETWEEN: LACHLAN J. HARGROVE and RONALD A. FRANCIS PLAINTIFFS -and-MALCOLM S. SWIM DEFENDANT SUPPLEMENTAL DECISION
WRITIEN SUBMISSIONS: Supplemental Decision to Decision dated October 6, 1999 of Justice David W. Gruchy RELEASE OF SUPPLEMENTAL DECISION: October 25, 1999 COUNSEL: Joseph M.J. Cooper, a.c. for the Plaintiff Michael J. O'Hara for the Defendant
GRUCHY, J.:
Subsequent to the filing of the decision herein counsel for the defendant has asked that I consider a submission with respect to the calculation of interest accruing after October 1, 1997, the date on which the plaintiffs demanded payment of the promissory note. Both counsel are agreed that the court has jurisdiction to revise or modify its decision prior to an Order being entered, and I agree with that position. (see Sackville Manor Limited v.Halifax (County), [1998] N.S.J. No. 521. The defendant has submitted that "...unless loan documentation makes explicit and express reference to the charging of interest after demand (or maturity) the law does not imply such provision". He has referred me to Waldron's "The Law of Interest in Canada", 1992, at page 190 where the author states: The legal presumption is that if the contract fails to provide expressly for interest after maturity, it will not be implied. The court will not presume that the parties intended to provide for default on the contract. Using the words interest "until paid" does not displace this presumption. The drafter must state that the agreed interest rate will apply to the outstanding principal balance and be compounded at the agreed upon intervals both before and after maturity of the loan. The defendant then goes on to cite St. John v. Rykert, (1884),10 S.CR. 278 and Toronto Dominion Bank v. Mr. KJean Enterprises Limited, (1987),37 D.L.R. (4th) 717. The defendant concludes that in this case none of the loan documentation - the promissory note, collateral mortgage or chattel mortgage - provides for interest at the 11% rate after demand or maturity and therefore submits that the plaintiffs are not entitled to the contract
2
rate of 11 % interest after October 1, 1997. The plaintiffs, however, have referred me specifically to Section 41(i) of the Nova Scotia Judicature Act which reads: In every proceeding commenced in the court, law and equity shall be administered therein, according to the following provisions: i. In any proceeding for the recoveryof any debt or damages, the court shall include in the sum for which judgment is to be given interest thereon at such rate as it thinks fit for the period between the date when the cause of action arose and the date of judgment after Trial or after any subsequent appeal. I conclude that the court has the right, and indeed the duty, to include in its judgment interest for the period at issue. The parties are all experienced businessmen. They made a bargain wherein the defendant promised to pay interest at 11 % per annum. Undoubtedly, that interest rate was an integral part of the overall bargain between the parties. I do not consider it advisable or equitable now to tinker with anyone particular aspect of the bargain reached by the parties. The interest rate to be applied to the debt for the period from the date of demand, October 1, 1997, to the date of judgment shall be 11 % per annum.
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.