Following the determination of the substantive High Court case earlier last year (see our previous summary here), this case concerned a dispute in respect of a right to claim interest for the five-and-a-quarter-year period between the appointment of the liquidators and the date on which the respondents were formally notified of the liquidators' intention to set aside the transactions.
Ebert argued, unsuccessfully, that it had changed its position to its detriment due to the lengthy delay between the liquidators' appointment and the notification of the claim. However, without proof that the costs of borrowing would have been less than the award of interest for this period, the Court could not conclude that Ebert had suffered any detriment by later having to pay interest for that period. Accordingly, with no detriment and no entitlement to the money (but nevertheless having the benefit of it), interest was found to be payable for the entire period.
The Court warned that the case should not be construed as providing for an absolute right to interest, regardless of the time taken to initiate proceedings. Each case will necessarily turn on its own facts and in particular it was noted that (i) it was always known that the transactions might be set aside on insolvency and (ii) the liquidators had a reasonable explanation for the delay in notifying the claim.
See Court decision here.