Monahan v Bellevarde Constructions Pty Ltd & Ors

District Court of NSW|2022-04-28

Post-judgment notices of motion

The principal judgment in these proceedings was delivered on 11 March 2022: Monahan v Bellevarde Constructions Pty Ltd & Ors [2022] NSWDC 50. These supplementary reasons, which assume familiarity with that decision, concern two post-judgment notices of motion respectively filed first, by the second and third defendants on 18 March 2022, and secondly, by the plaintiff on 23 March 2022. Those motions seek variations in the dispositive orders made at the time of judgment. The time interval between the filing and hearing of the notices of motion was due to the respective availabilities of counsel for the parties.
The effect of the amendments reflects first, the calculation of interest on the plaintiff's award of damages sought by the plaintiff for past economic loss, and secondly, the plaintiff's concession that, unfortunately for him, in this case he cannot recover damages in excess of the Court's jurisdictional limit of $750,000. This is because his case was brought under the Civil Liability Act 2002 (NSW), ("CL Act") and the defendants filed defences objecting to extended or unlimited jurisdiction. The result would have been otherwise if his claim was assessed under the schemes for assessing damages for injuries sustained in a motor accident or employer's negligence, the irony here being that the plaintiff's injury was sustained whilst he was at work, but not due to employer negligence.

Variation of orders as sought by second and third defendants

The second and third defendants' notice of motion filed on 18 March 2022, as amended on 28 April 2022, sought orders as follows: 1. The orders made at paragraph [297] of the judgment handed down on 11 March 2022 be set aside and in lieu of those orders, the following orders to be entered: 1. Judgment for the plaintiff against the first and second defendants jointly and severally in the sum of $942,409 (judgment sum) plus interest and costs as agreed or assessed. 2. (a1) Note that the plaintiff cannot seek satisfaction of the judgment sum against the first and second defendant jointly and severally for an amount in excess of $750,000 (the recoverable judgment sum). 3. Judgment for the second defendant on the first cross claim against the first defendant for 80 per cent of the recoverable judgment sum being $600,000. 4. Judgment for the first defendant on the second cross claim against the second defendant for 20 per cent of the recoverable judgment sum being $150,000. 5. The defendants should pay the plaintiff's costs of the proceedings against them in the proportion of 80 per cent by the first defendant and 20 per cent by the second defendant. 6. The first and second defendants to bear their own costs of the cross claims. 7. The plaintiff's claim as against the third defendant be dismissed with no order as to costs. 8. The Court notes that the first defendant is to pay directly to the plaintiff the sum of $600,000 in full and final satisfaction of the judgment sum and the recoverable judgment sum. 9. The court notes that the second defendant is to pay directly to the plaintiff the sum of $150,000 in full and final satisfaction of the judgment sum and the recoverable judgment sum. 1. The first defendant to pay the second defendant's costs of the proceedings on an indemnity basis from 9 November 2021.

Variation of orders as sought by the plaintiff

The plaintiff's notice of motion filed on 23 March 2022 sought orders as follows: 1. Judgment for the plaintiff for interest on past economic loss in the sum of $3,147 or such other amount as the Court determines; 2. Amendments to the Judgment of 11 March 2022 consequential upon Order 1 being: 1. The verdict sum in Order 1 and elsewhere becomes $945,556. 2. The figure in Order 2 and elsewhere of $753,927.20 be amended to be $756,444.80. 3. The figure in Order 2 of $750,000 be amended to be $753,147. 4. The figure in Order 3 and elsewhere of $188,481.80 be amended to be $189,111.20. 1. An Order that the defendants pay the plaintiff's costs on the ordinary basis up to 24 August 2021, and on an indemnity basis thereafter. 2. In the alternative to proposed Order 3 above, an Order that the defendants pay the plaintiff's costs on the ordinary basis up to 9 November 2021, and on an indemnity basis thereafter.

Evidence relied upon for the notices of motion

The second and third defendants relied upon an affidavit from Mr Brian Moroney, solicitor, sworn on 21 March 2022, which referred to an offer the second and third defendants had made to the first defendant on 5 November 2021. That offer invited acceptance of the proposition that the first defendant contribute 20 per cent towards any judgment or settlement in favour of the plaintiff.
That offer also provided for the cross-claims between the first defendant and the second and third defendants to be dismissed with no order as to costs. Those offers were expressed as being served in accordance with Rule 20.32 of the Uniform Civil Procedure Rules 2005 (NSW).
The second and third defendants have obtained a more favourable outcome than that contained in the offer and therefore seek a special costs order against the first defendant. That offer formed the basis for the application by the second and third defendants for the first defendant to pay their costs on an indemnity basis from 9 November 2021. The first defendant did not produce any evidence on the respective notices of motion. The plaintiff relied upon correspondence dated 24 August 2021 and 9 November 2021 concerning settlement offers. Mr Moroney's affidavit did not annex the complete correspondence referred to in his affidavit.

Clarification of reasons concerning apportionment between the defendants

In the principal judgment the finding concerning apportionment of the respective liabilities of the defendants was identified at 80 per cent and 20 per cent on the cross-claims between the first defendant on the one hand, and the second and third defendants on the other.
The reasoning for that apportionment proceeded in part on the basis of proportionate liability provisions of s 35 of the CL Act: Judgment, paragraphs [216] - [227]. That approach was erroneous as that provision does not apply to claims for personal injury: s 34 of the CL Act.
The correct approach is that which is identified within the provision of s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). That said, as is evident in the principal judgment, the respective blameworthiness of the defendants for the plaintiff's injury was assessed by applying those principles. In that regard, the reasons in paragraphs [218] and [219] of the principal judgment stated: "218 An assessment must be made by comparing the relative blameworthiness of the culpabilities of each party so as to rationally identify the causative potency of the negligence of each party according to what is just and equitable in the circumstances: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34, at [10]; Wynbergen v Hoyts Corporation Limited (1997) 72 ALJR 65, at p 68; James Hardy & Co Pty Limited v Roberts [1999] 47 NSWLR 425, at p 429, Clarke JA in Macquarie Pathology Services Pty Ltd v Sullivan, NSWCA, unreported (29 March 1995). 219 Reasoned findings along those lines are essential preconditions for making an apportionment pursuant to s 5(2) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW); Amaca Pty Limited v State of New South Wales (2003) ALJR 1509, at p 1513, [20]."
The resultant apportionment of the respective liability in the ratio 80/20 would have been the same on both approaches. That said, in my view, the erroneous approach which invoked s 35 of the CL Act is not one that can be corrected under the slip rule pursuant to UCPR r 36.17, although the result would be no different, for the reasons stated.
Since I have been informed that a notice of intention to appeal has been filed by the first defendant I therefore refrain from commenting further on this point.

Claim for dismissal of proceedings against the third defendant, Allianz

The third defendant, Allianz, sought to have the claim against it dismissed. In my opinion that course is inappropriate without the consent of all the parties, given the statement by counsel for the second and third defendants made at the outset of the trial (at T4.36 and following) that in the event the second defendant is found liable, the third defendant, Allianz, would without question pay any damages found to be due to the plaintiff.

Agreement reached on proposed orders

At the hearing of the respective notices of motion on 28 April 2022 the parties requested some time to seek to reach agreement on matters in contention. Those discussions continued after judgment was reserved pending receipt of the transcript. Subsequently, on 6 May 2022, the parties informed the Court that an agreement had been reached on outstanding matters. That agreement will be reflected in the orders that now follow.

Orders

I now make the following orders and notations by consent: 1. By consent, the orders made at paragraph [297] of the Judgment delivered on 11 March 2022 are set aside and in lieu of those orders, the following orders are to be entered: 1. Judgment for the plaintiff against the first and second defendants jointly and severally in the sum of $750,000 (Judgment Sum) inclusive of interest; 2. The first and second defendants to pay the plaintiff's costs of the proceedings as agreed or assessed on the ordinary basis in the proportion of 80 per cent by the first defendant and 20 per cent by the second defendant. 3. Judgment for the second defendant on the First Cross Claim against the first defendant for 80% of the Judgment Sum being $600,000.00. 4. Judgment for the first defendant on the Second Cross Claim against the second defendant for 20% of the Judgment Sum being $150,000.00. 5. The first and second defendants to bear their own costs of the cross claims. 6. The plaintiff's claim as against the third defendant be dismissed. 7. The first defendant to pay the second defendant's costs of the proceedings on an indemnity basis from 19 November 2021. 8. No order as to costs of the Notices of Motion filed 18 March 2022, 23 March 2022 and the Amended Notice of Motion filed in court on 28 April 2022 (the Motions) with the intention that each party pay its own costs of the Motions. 1. The Court notes that: 1. The payment of the plaintiff's costs is to include the plaintiff's costs as against the third defendant; 2. The first defendant will pay directly to the plaintiff the sum of $600,000 plus 80% of the costs as agreed or assessed as full and final satisfaction of its liability to the plaintiff; 3. The second defendant will pay directly to the plaintiff the sum of $150,000 plus 20% of the costs as agreed or assessed as full and final satisfaction of its liability to the plaintiff; 4. The orders made above do not in any way prejudice the first or second defendants' rights to prosecute an appeal with respect to the Court's findings as to the apportionment to the first and second defendants for the plaintiff's damages, indemnity and ordinary costs as between the first and second defendants on the principal claim and indemnity and ordinary costs as between the first and second defendants on the associated costs claims.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2022

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Judgment (10 paragraphs)

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