Serrao (by his tutor Serrao) v Cornelius

Serrao (by his tutor Serrao) v Cornelius - [2016] NSWCA 293 - NSWCA 2016 case summary — Zoe

Judgment

THE COURT: This Court has delivered two judgments on an appeal and cross-appeal from a decision of the District Court. [1] The proceedings arose out of a motor vehicle accident that took place on 14 August 2010.
The ultimate outcome of the appeal and cross-appeal was that the appellant (the plaintiff) failed in his claim against the respondent (the defendant), insofar as the claim was founded on the respondent's alleged negligence. However, the appellant succeeded in his alternative claim for damages based on the "blameless motor accident" provisions of the Motor Accidents (Compensation) Act 1999 (MAC Act). [2] In the Second Appeal Judgment, the Court reduced the respondent's total damages, as assessed by the District Court Judge, by 50 per cent by reason of contributory negligence.
The Second Appeal Judgment explained the background to the respondent's blameless accident claim as follows: [3] "2. In a judgment delivered on 6 February 2015 (Primary Judgment), [4] the District Court concluded that, subject to an allowance for the costs of funds management, judgment should be entered for the appellant against the respondent in the sum of $1,241,107.80. This amount represented the damages awarded to the appellant by reason of the respondent's negligence in a motor accident, taking into account a reduction of 40 per cent by reason of the appellant's contributory negligence. 3. The primary Judge decided that the question of damages for funds management should be determined separately. On 13 February 2015, judgment was entered for the appellant in the sum of $1,556,378.80. The additional amount of $315,271.20 was awarded in respect of the costs of funds management… 4. The appellant appealed on the ground that the damages award was inadequate, while the respondent cross-appealed against the finding that she was liable to the appellant. In [the First Appeal Judgment], this Court allowed the cross-appeal and set aside the orders made by the primary Judge. The effect was that the appellant's claim in negligence failed. 5. The appellant pleaded an alternative claim based on the "blameless motor accident" provisions of the [MAC Act]…[Neither] the Primary Judgment nor the [First Appeal] Judgment addressed the alternative claim."
In addition to allowing the cross-appeal and setting aside the orders made by the primary Judge, the Court in the First Appeal Judgment dismissed Grounds 1-4 of the appellant's Notice of Appeal (all of which related to the primary Judge's finding that the appellant had been contributorily negligent). The Court made orders, subject to further submissions, that the appellant pay the respondent's costs of the appeal insofar as they related to Grounds 1-4 (Order 6) and also that he pay the respondent's costs of the cross-appeal (Order 7).
The primary Judge did not address the appellant's blameless motor accident claim apparently because his Honour considered that the finding that the respondent had been negligent made it unnecessary to consider the appellant's alternative claim. The First Appeal Judgment did not address the appellant's blameless motor accident claim for a different reason. The Notice of Appeal, as originally filed, did not raise any issue concerning the pleaded blameless motor accident claim. However, at the hearing the appellant was given leave to amend the Notice of Appeal to include a contention that the primary Judge should have upheld the blameless motor accident claim. The amendment became Ground 5 of the Amended Notice of Appeal.
After receiving further written submissions from the parties, the Court in the Second Appeal Judgment upheld Ground 5 of the Amended Notice of Appeal. The Court concluded that the appellant was entitled to damages against the Respondent pursuant to s 7B of the MAC Act. [5] However, the Court reduced the total damages as assessed by the primary Judge ($2,068,513.00) by 50 per cent to take account of the appellant's contributory negligence. Accordingly, subject to assessing damages for the costs of funds management, the Court found that the appellant was entitled to damages of $1,034,256.50. The Second Appeal Judgment recorded that the appellant proposed that the assessment of damages for the costs of funds management should be determined separately, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r. 28.2. This proposal was apparently made because the appellant's advisers took the view that the corpus of the fund to be managed could not be known until all costs issues had been resolved.
The Second Appeal Judgment expressed the Court's tentative views as to costs, as follows: [6] "74. Both parties have some success and some failure in this Court. The respondent has succeeded on her cross-appeal [as to negligence] but the appellant has succeeded on Ground 5 of the Amended Notice of Appeal [the blameless motor accident case]. As at present advised, I am inclined to make no order as to the costs of the appeal or cross-appeal, with the intent that each party bear his or her own costs. 75. The appellant succeeded in his negligence claim before the primary Judge, but that claim has been effectively dismissed on appeal. The appellant has succeeded in his claim for damages, but on a basis that was not addressed at the trial. My present view is that there should be no order as to the cost of the trial, again with the intent that each party bear his or her own costs."
In the Second Appeal Judgment, the Court allowed the appeal on Ground 5 of the Amended Notice of Appeal and directed the parties to bring in agreed short minutes of order. In the absence of agreement, the parties were directed to file proposed short minutes of order on any outstanding issues and written submissions in support of the proposed orders.

[7]

Costs of the appeal

It is convenient to deal first with the costs of the appeal (and cross-appeal). It is unfortunate that the appellant did not include Ground 5 in the original Notice of Appeal. The effect of the omission was that all issues between the parties could not be addressed on the hearing of the appeal and cross-appeal. The appeal was prolonged because the Court had to make directions for the parties to file written submissions on Ground 5 of the Amended Notice of Appeal. Once the submissions were received, the Court then had to prepare a separate judgment dealing with the appellant's blameless motor accident claim.
It seems appropriate to determine the appropriate costs order in relation to the appeal and cross-appeal by reference to the parties' overall success (or failure) in this Court. We take this view not least because making separate costs orders for the appeal and cross-appeal is likely to require a detailed assessment of each set of costs, a process which may well postpone final resolution of the case. There is also a good chance that the costs orders would very nearly cancel each other out.
As has been explained, the appellant failed on the respondent's cross-appeal and on Grounds 1-4 of the Amended Notice of Appeal, but succeeded on Ground 5. In the result, the appellant retained the judgment in his favour, albeit based on a different cause of action, but lost a relatively small proportion of his damages.
The respondent succeeded on the cross-appeal and thus overturned the finding of negligence made by the primary Judge. However, the respondent failed in her contention that the appellant's contributory negligence defeated his blameless motor accident claim under Part 1.2 Div 1 of the MAC Act.
Having regard to the outcome of the appeal and cross-appeal, we see no reason to depart from the view expressed in the Second Appeal Judgment. There should be no order as to the costs of the appeal and cross-appeal, with the intent that each party should bear his or her own costs.

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Judgment (10 paragraphs)

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Cited By (1)