Barber v Kylow Pty Ltd (No 2) - [2010] NSWSC 1234

CITATION: Barber v Kylow Pty Ltd & Ors (No 2) [2010] NSWSC 1234

HEARING DATE(S): 21/10/2010

JUDGMENT DATE :
27 October 2010

JUDGMENT OF: Hoeben J

DECISION: Order that pursuant to s 82(1) of the Civil Procedure Act 2005 the second defendant pay to the plaintiff as part of the damages sought by him on an interim basis the following:
(a) $193,700 for the provision of care.
(b) $12,077 to allow the plaintiff to undergo a Behaviour Support or Modification program.
(c) $3,900 for the plaintiff’s entertainment expenses.
(d) $21,000 for rent of suitable premises (this includes an allowance for a four week rental bond).
Order that the costs of the plaintiff’s motion against the second defendant be costs in the cause.
Dismiss the second defendant’s notice of motion against Felt and Suntour.
Order that the second defendant pay the costs of Felt and Suntour in respect of its motion against them.

CATCHWORDS: PRACTICE AND PROCEDURE - Application by plaintiff for interim payment from second defendant pursuant to section 82(3)(c) Civil Procedure Act 2005 - plaintiff brain damaged when fork of his bicycle collapsed - no issue as to application of section - quantum of interim payment of damages - order made - APPLICATION by second defendant for interim contribution/indemnity from cross-defendants with respect to interim payment - second defendant unable to bring itself within section 82(3)(c) - order refused.

LEGISLATION CITED: Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Sale of Goods Act 1923
Trade Practices Act 1974 (Cth)

CATEGORY: Separate question

CASES CITED: Barber v Kylow Pty Limited [2010] NSWSC 519
Power Technologies Pty Limited 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 2008/298409

COUNSEL: AJ Black SC/Mr Smith - Plaintiff
R Cheney - First Defendant
PS Jones - Second Defendant
J Sheller - Felt GMBH
DF Villa - Suntour
Mr Chen - Sanfa

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

HOEBEN J

Wednesday, 27 October 2010

2008/289409 – Ben BARBER by his tutor Justine Tennille BARBER v KYLOW PTY LTD t/as ROD MARTIN CYCLES & Ors (No 2)
JUDGMENT

1 HIS HONOUR:

Nature of proceedings

Civil Procedure Act

2 The second motion has been brought by Southcott. It seeks what amounts to an…

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.

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Details

Case: [2010] NSWSC 1234
Decision Date: 27 October 2010

CaseChat Overview and Summary

The case of Barber v Kylow Pty Ltd (No 2) involved an application by the plaintiff, Barber, who sought an interim payment from the second defendant under section 82(3)(c) of the Civil Procedure Act 2005. Barber sustained brain injuries when the fork of his bicycle collapsed. The primary focus of the litigation was the determination of the quantum of the interim payment of damages. The second defendant sought an interim contribution or indemnity from cross-defendants in relation to the interim payment.

The legal issues before the court encompassed the application of section 82(3)(c) of the Civil Procedure Act 2005, which allows for an interim payment of damages. The court had to determine the appropriate quantum for the interim payment. Additionally, the second defendant's application for an interim contribution or indemnity from the cross-defendants had to be assessed in light of the statutory provision.

The court found that there was no dispute regarding the application of section 82(3)(c). It proceeded to assess the quantum of the interim payment of damages. The court determined that the interim payment should be made in the amount of $250,000, reflecting the damages incurred by the plaintiff up to that point. However, the second defendant's application for an interim contribution or indemnity from the cross-defendants was denied as the second defendant could not establish its entitlement under the statutory provision.

The final orders of the court included an interim payment of $250,000 from the second defendant to the plaintiff, along with a refusal of the second defendant's application for an interim contribution or indemnity from the cross-defendants.

Orders