Barber v Kylow Pty Ltd - [2010] NSWSC 519

CITATION: Barber v Kylow Pty Ltd [2010] NSWSC 519

HEARING DATE(S): 11 June 2010

JUDGMENT DATE :
18 June 2010

JUDGMENT OF: Harrison J

DECISION: 1. Order that pursuant to s 82(1) of the Civil Procedure Act 2005 the second defendant pay $48,120 to the plaintiff as part of the damages sought to be recovered in the proceedings.
2. Order that the costs of the plaintiff's motion against the second defendant be the costs in the cause.
3. Dismiss the second defendant's notice of motion against the first defendant and the first cross defendant.
4. Order that the costs of the second defendant's notice of motion be the first defendant's and the first cross defendant's costs in the cause.

CATCHWORDS: PRACTICE & PROCEDURE – application by plaintiff for interim payment from second defendant pursuant to s 82(3)(c) Civil Procedure Act 2005 – plaintiff severely injured when the forks of his bike collapsed – whether if proceedings went to trial the plaintiff would obtain judgment for substantial damages against second defendant – quantum of interim payment – order made – where application by second defendant for preliminary order for contribution or indemnity against first defendant and/or first cross claimant with respect to interim payment – order refused

LEGISLATION CITED: Civil Procedure Act 2005
Trade Practices Act 1974 (Cth)
Civil Liability Act 2002

CATEGORY: Procedural and other rulings

CASES CITED: Forster v Hunter New England Area Health Service [2010] NSWCA 106
Hardwick v McSwiney (No 3) [2010] NSWSC 3
Power Technologies Pty Ltd v Energy Australia [2010] NSWCA 107

PARTIES:
Ben Barber by his tutor Justine Tennille Barber (Plaintiff)
Kylow Pty Ltd t/as Rod Martin Cycles (First Defendant/ Second Cross Claimant)
Southcott Pty Ltd (Second Defendant/First Cross Claimant)
Felt Gesellschaft Mit Beschrankter Haftung (First Cross Defendant/Third Cross Claimant)
Sanfa Bicycle Industrial Co Ltd (First Cross Defendant to the Third Cross Claim)
SR Suntour Inc (Second Cross Defendant to the Third Cross Claim)

FILE NUMBER(S): SC 2008/289409

COUNSEL: A J Black with P Kerr (Plaintiff)
R J Cheney (First Defendant)
P S Jones (Second Defendant)
J C Sheller (First Cross Defendant)

SOLICITORS: Stacks/Goudkamp Lawyers (Plaintiff)
Lee & Lyons (First Defendant)
Ebsworth Lawyers (Second Defendant)
Maddocks (First Cross Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

18 June 2010

2008/289409 Ben Barber bht Justine Tennille Barber v Kylow Pty Ltd t/as Rod Martin Cycles & Ors
JUDGMENT

1 HIS HONOUR: On 19 August 2005 the plaintiff, who had just turned 15, was cycling with friends in Bensville Park, when the forks of his bike collapsed. He was severely injured, sustaining very serious head injuries and brain damage. He continues to suffer from a profound intellectual disability and is subject to behavioural disturbances.

2 He commenced these proceedings, which are due to be heard on 6 September 2010. In the meantime, he has applied by notice of motion filed on 25 March 2010, for an interim payment pursuant to s 82(3)(c) of the Civil Procedure Act 2005. That relief…

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 Barber v Kylow Pty Ltd

Details

AGLC: Barber v Kylow Pty Ltd [2010] NSWSC 519
Case: [2010] NSWSC 519
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the case of Barber v Kylow Pty Ltd, the plaintiff, Barber, sought an interim payment from the second defendant, Kylow Pty Ltd, pursuant to section 82(3)(c) of the Civil Procedure Act 2005. The plaintiff suffered severe injuries when the forks of his bike collapsed, leading to his claim against Kylow Pty Ltd. The primary legal issue before the court was whether, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the second defendant. The court was also required to determine the appropriate quantum of the interim payment and consider the second defendant's application for a preliminary order for contribution or indemnity against the first defendant and/or the first cross-claimant in relation to the interim payment.

The court carefully examined the evidence presented and concluded that the plaintiff was likely to obtain substantial damages if the proceedings went to trial. Given the nature of the injuries and the circumstances of the collapse, the court found that the plaintiff met the criteria for an interim payment under section 82(3)(c) of the Civil Procedure Act. In determining the quantum of the interim payment, the court considered various factors, including the plaintiff's medical expenses and the likelihood of future damages. The court ultimately ordered an interim payment to the plaintiff from Kylow Pty Ltd. Additionally, the court denied the second defendant's application for a preliminary order for contribution or indemnity against the first defendant and/or the first cross-claimant, finding that such an order was not warranted at that stage of the proceedings.

Orders