AFF Properties Pty Ltd v Robovich - [2023] NSWPIC 41

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AFF Properties Pty Ltd v Robovich & Ors [2023] NSWPIC 41
APPLICANT:	AFF Properties Pty Ltd
FIRST RESPONDENT:	Jennifer Leslie Robovich
SECOND RESPONDENT:	Solomon Robovich
THIRD RESPONDENT:	Sabina Mead (née Robovich)
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	3 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; claim for interest on lump sum death benefit pursuant to section 109; consideration of Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Shanika Cooper v G & W Mudge Concreting Pty Limited & others, Zona Coatings Pty Limited v Zrinski & Ors, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors and BFG v Polyfoam (Sydney) Pty Ltd & Ors; Held – award of interest from the date the claim was “duly made”, being when each respondent’s Reply was served, at a rate 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum.
determinations made:	1. The applicant is to pay to the first respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $667,360 as follows: (a) from 9 August 2022 to 6 September 2022 at the rate of 3.85% per annum; (b) from 7 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (c) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (d) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (e) from 7 December 2022 to 31 January 2023 at 5.10% per annum. 2. The applicant is to pay to the second respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $83,420 as follows: (a) from 16 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (b) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (c) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (d) from 7 December 2022 to 31 January 2023 at the rate of 5.10% per annum. 3. The applicant is to pay to the third respondent, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the sum of $83,420 as follows: (a) from 19 September 2022 to 4 October 2022 at the rate of 4.35% per annum; (b) from 5 October 2022 to 1 November 2022 at the rate of 4.60% per annum; (c) from 2 November 2022 to 6 December 2022 at the rate of 4.85% per annum, and (d) from 7 December 2022 to 31 January 2023 at the rate of 5.10% per…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AFF Properties Pty Ltd v Robovich

Details

AGLC: AFF Properties Pty Ltd v Robovich [2023] NSWPIC 41
Case: [2023] NSWPIC 41
Decision Date: 3 February 2023

CaseChat Overview and Summary

The case of AFF Properties Pty Ltd v Robovich involves a dispute concerning the calculation of interest on a lump sum death benefit under the Workplace Injury Management and Workers Compensation Act 1998. The plaintiff, AFF Properties, sought interest on a death benefit awarded to the estate of the deceased worker, who was an employee of one of the respondents, Robovich. The legal issue before the court was the timing from which interest should be calculated and the applicable interest rate. The court had to consider the relevant statutory provisions and a series of precedents, including Haidary v Wandella Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Shanika Cooper v G & W Mudge Concreting Pty Limited & others, Zona Coatings Pty Limited v Zrinski & Ors, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited, Cassegrain Tea Tree Oil Pty Ltd v BBS & Ors, and BFG v Polyfoam (Sydney) Pty Ltd & Ors.

In determining the legal issues, the court focused on when the claim for interest on the death benefit was "duly made" and the appropriate interest rate. The court concluded that the claim was "duly made" when the respondents served their replies, as per the statutory definition. For the interest rate, the court adopted the formula of 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum. This interpretation was consistent with the statutory framework and the relevant precedents.

The court's reasoning was grounded in a careful analysis of the statutory language and the established case law. It held that the interest should commence from the date the respondents served their replies, aligning with the statutory requirement for a "duly made" claim. The court further determined that the interest rate should be 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum, to fairly reflect the statutory intent and the equitable treatment of the parties involved.

The final orders of the court directed the respondents to pay interest on the death benefit lump sum from the date their replies were served, calculated at a rate of 2% above the Reserve Bank of Australia cash rate, apportioned in the same proportions as the lump sum. This decision provided clarity on the statutory provisions and the application of interest in workers compensation cases.

Orders