Beazley P at [1]; Ward JA at [129]; Harrison J at [130]
Decision:
(1) Order 1 made on 11 December 2015 be corrected pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.17 so as to insert, in lieu of the judgment sum $210,927, the sum of $200,099;
(2) Appeal dismissed;
(3) The appellant to pay the respondent’s costs of the appeal.
Catchwords:
DAMAGES – exemplary damages – whether trial judge erred in awarding exemplary damages – basis for award of exemplary damages – where conduct has been subject to sanction by the criminal law – whether “substantial punishment” – whether separate basis existed for award of exemplary damages – conduct of civil proceedings after plea of guilty – whether conduct of civil proceedings formed appropriate basis for award of exemplary damages
DAMAGES – out-of-pocket expenses – award made for future out-of-pocket expenses – whether proper basis in evidence for award
TORTS – intentional torts – assault and battery – altercation between plaintiff and defendant – whether trial judge erred in relation to factual findings
[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
AGLC
Cheng v Farjudi [2016] NSWCA 316
Case
[2016] NSWCA 316
Decision Date
CaseChat Overview and Summary
In the matter of *Cheng v Farjudi*, the New South Wales Court of Appeal considered an appeal from a judgment of the District Court of New South Wales. The dispute arose from an altercation between the plaintiff, Mr Farjudi, and the defendant, Mr Cheng, which resulted in findings of assault and battery against Mr Cheng. The appeal concerned the trial judge's award of damages, specifically the inclusion of exemplary damages and an award for future out-of-pocket expenses.
The Court of Appeal was required to determine whether the trial judge erred in awarding exemplary damages. This involved considering whether the conduct of Mr Cheng, which had been subject to sanction by the criminal law, constituted a "substantial punishment" such that exemplary damages were inappropriate. The court also had to assess whether the conduct of the civil proceedings themselves provided a separate and appropriate basis for an award of exemplary damages, particularly in light of Mr Cheng's plea of guilty in the criminal proceedings. Furthermore, the appeal questioned whether there was a proper evidentiary basis for the trial judge's award of future out-of-pocket expenses.
The Court of Appeal found no error in the trial judge's factual findings regarding the assault and battery. Regarding exemplary damages, the court held that the criminal sanction imposed on Mr Cheng did not preclude an award of exemplary damages in the civil proceedings, as the criminal penalty was not of a magnitude that could be considered a "substantial punishment" for the purposes of preventing a civil award. The court also determined that the conduct of the civil proceedings, including Mr Cheng's approach to the litigation, provided a sufficient basis for the award of exemplary damages. The appeal was dismissed, with the Court of Appeal making a minor correction to the judgment sum awarded at trial.
Orders
Orders of the court
(1) Order 1 made on 11 December 2015 be corrected pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 36.17 so as to insert, in lieu of the judgment sum $210,927, the sum of $200,099;
(2) Appeal dismissed;
(3) The appellant to pay the respondent’s costs of the appeal.