District Court
New South Wales
Medium Neutral Citation: Alldinger v Du Ranot [2023] NSWDC 37 Hearing dates: 15, 16 & 17 February 2023 Date of orders: 28 February 2023 Decision date: 28 February 2023 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict for the plaintiff in the sum of $1,103,234.45;
2. After credits and offsets due to the defendant, judgment for the plaintiff in the sum of $975,000;
3. The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party can show an entitlement to some other order for costs;
4. The exhibits are to be retained subject to any further order of the Court;
5. The Registrar of the Court is directed to refer a copy of these reasons, together with a copy of the transcript of the plaintiff’s evidence (with a copy of the errata schedule comprising Exhibit “F”) and the certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW) to the Commissioner for Taxation for the Commissioner’s consideration;
6. Liberty to apply on 7 days’ notice if further or other orders are required.
Catchwords: TORTS – motor vehicle accident – plaintiff cyclist struck by defendant’s vehicle – liability admitted; DAMAGES – assessment of damages – self-employed café proprietor claiming damages for economic loss – plaintiff under-declared his income to avoid tax – assessment based on true earning capacity – certificate granted to plaintiff pursuant to s 128 of the Evidence Act 1995 (NSW) – Registrar to refer reasons for judgment and transcript of plaintiff’s evidence to the Commissioner for Taxation for consideration
Legislation Cited: Civil Liability Act 2002 (NSW), s 13
Evidence Act 1995 (NSW), s 128
Motor Accidents Compensation Act 1999 (NSW), s 83, s 126, s 136, s 141
Uniform Civil Procedure Rules 2005 (NSW), Sch 7 cl 3(e)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Arnott v Choy [2010] NSWCA 259
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; [1982] HCA 3
Giorginis v Kastrati (1988) SASR 371
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Insurance Australia Limited t/a NRMA Insurance v John Checchia [2011] NSWCA 101
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Matar v Jones [2011] NSWCA 304
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Morvatjou v Modadkhani [2013] NSWCA 159
Penrith City Council v Parks [2004] NSWCA 201
Petera Pty Ltd v EAJ Pty Ltd (1985) 7 FCR 375
Pham v NRMA Insurance Ltd and Others (2014) 66 MVR 152; [2014] NSWCA 22
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501
Texts Cited: Mayne and McGregor on Damages; 12th Ed (1962)
Category: Principal judgment Parties: Michael Alldinger (Plaintiff)
Donovan Du…
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- AGLC
- Alldinger v Du Ranot [2023] NSWDC 37
- Case
- [2023] NSWDC 37
- Decision Date
CaseChat Overview and Summary
The court needed to balance the plaintiff's true earning capacity against the potential penalties that might be imposed by the Commissioner for Taxation due to the under-declared income. It was necessary to issue a certificate under section 128 of the Evidence Act 1995 (NSW) to enable the Commissioner for Taxation to assess the plaintiff's true income. The court granted such a certificate and directed that a copy of the reasons for judgment, the transcript of the plaintiff's evidence, and the certificate be referred to the Commissioner for Taxation for consideration.
After considering the evidence and the plaintiff's true earning capacity, the court found in favour of the plaintiff, awarding damages of $1,103,234.45. After applying credits and offsets, the final judgment was for $975,000. The defendant was ordered to pay the plaintiff's costs on the ordinary basis, unless another order for costs was justified. The exhibits were to be retained subject to any further order of the court. Additionally, the Registrar of the Court was directed to refer the reasons for judgment, the transcript of the plaintiff's evidence, and the certificate to the Commissioner for Taxation for consideration. The parties were granted liberty to apply for further or other orders if necessary.
Orders
Orders of the court
1. Verdict for the plaintiff in the sum of $1,103,234.45;
2. After credits and offsets due to the defendant, judgment for the plaintiff in the sum of $975,000;
3. The defendant is to pay the plaintiff’s costs on the ordinary basis unless a party can show an entitlement to some other order for costs;
4. The exhibits are to be retained subject to any further order of the Court;
5. The Registrar of the Court is directed to refer a copy of these reasons, together with a copy of the transcript of the plaintiff’s evidence (with a copy of the errata schedule comprising Exhibit “F”) and the certificate issued pursuant to s 128 of the Evidence Act 1995 (NSW) to the Commissioner for Taxation for the Commissioner’s consideration;
6. Liberty to apply on 7 days’ notice if further or other orders are required.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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