Case: Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135
Outcome: cited
one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court. In this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent. As to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.