Cheng v Farjudi

Case [2016] NSWCA 316


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Cheng v Farjudi [2016] NSWCA 316
Hearing dates: 21 September 2016
Decision date: 21 November 2016
Before: 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
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: BHP Billiton Ltd v Parker [2012] SASFC 73
Brockway v Pando [2000] WASCA 192
Browne v Dunn (1893) 6 R 67
Carter v Walker [2010] VSCA 340; 32 VR 1
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA
Cotogno v Lamb (No 3) (1986) 5 NSWLR 559
Cramer v Geraldton Building Company [2004] WASCA 289
Daniels v Thompson [1998] NZCA 3; [1998] 3 NZLR 22
De Reus v Gray [2003] VSCA 84; 9 VR 432
Fernando v Commonwealth [2014] FCAFC 181; 231 FCR 251
Giller v Procopets [2008] VSCA 236; 24 VR 1
Gray v Motor Accidents Commission [1998] HCA 70; 196 CLR 1
House v The King (1936) 55 CLR 499
Lamb v Cotogno [1987] HCA 47; 164 CLR 1
McFadzean v CMFEU [2007] VSCA 289; 20 VR 250
Niven v SS [2006] NSWCA 338
Noye v Robbins [2010] WASCA 83
R v Mauger [2012] NSWCCA 51
Rookes v Barnard [1964] AC 1129
S v R [2004] WASCA 113
State of New South Wales v McMaster [2015] NSWCA 228
State of Victoria v Horvath [2002] VSCA 177; 6 VR 326
The Herald & Weekly Times v Popovic [2003] VSCA 161; 9 VR 1
Tilden v Gregg [2015] NSWCA 164
Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118
Vaysman v Deckers Outdoor Corporation Inc [2014] FCAFC 60; 222 FCR 387
W v W [1999] 2 NZLR 1
Whitbread v Rail Corporation NSW [2011] NSWCA 130
Whitfeld v De Lauret & Co Ltd [1920] HCA 75; 29 CLR 71
Wilson v Horne [1999] TASSC 33; 8 Tas R 363
XL Petroleum (NSW) Pty Ltd v…

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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.

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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