New South Wales
Court of Appeal
CITATION: Dasreef Pty Limited v Hawchar (No 2) [2010] NSWCA 254 HEARING DATE(S): On the papers
JUDGMENT DATE:
5 October 2010JUDGMENT OF: Allsop P at 1; Basten JA at 1; Campbell JA at 1 DECISION: Order that the appellant pay 85 per cent of the costs of the respondent. CATEGORY: Consequential orders CASES CITED: Dasreef Pty Limited v Hawchar [2010] NSWCA 154 PARTIES: Dasreef Pty Limited
Nawaf HawcharFILE NUMBER(S): CA 2009/298380 COUNSEL: Mr T G R Parker SC, Mr D T Miller (Appellant)
Mr H Marshall SC, Mr F Tuscano (Respondent)SOLICITORS: Moray & Agnew Solicitors (Appellant)
Keddies Lawyers (Respondent)LOWER COURT JURISDICTION: Dust Diseases Tribunal LOWER COURT FILE NUMBER(S): 2007/7323 LOWER COURT JUDICIAL OFFICER: Curtis J LOWER COURT DATE OF DECISION: 15 July 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Nawaf Hawchar v Dasreef Pty Ltd (No 2) [2009] NSWDDT 18
2009/298380
Tuesday 5 October 2010ALLSOP P
BASTEN JA
CAMPBELL JA
1 THE COURT: On 6 July 2010, the Court made orders allowing the appeal in part: Dasreef Pty Limited v Hawchar [2010] NSWCA 154. An order was made to remit the question of costs of the hearing before the Dust Diseases Tribunal to the Tribunal for reconsideration. Although the event by reference to which it might be argued costs should be assessed is the partial success on appeal, that success of the appellant needs to be understood in its context. As a reading of the reasons makes clear the appellant had extremely limited success (only on the costs appeal) and failed in the substantive challenges to the judgment of the Dust Diseases Tribunal.
2 The error of principle identified in the main judgment being the approach of the Tribunal to the question of issue estoppel was effectively conceded by counsel for Mr Hawchar. The lack of clarity in relation to the capping order in relation to costs persuaded the Court to remit the matter of costs.
3 All in all, a just and fair attribution of costs for the appeal would be that the appellant pay 85 per cent of the respondent’s costs of the appeal. This would reflect fairly the very limited success of the appellant and the time taken in preparation for, and argument on, the appeal.
4 The order as to the costs of the appeal will be that the appellant pay 85 per cent of the costs of the respondent.
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- AGLC
- Dasreef Pty Limited v Hawchar (No 2) [2010] NSWCA 254
- Case
- [2010] NSWCA 254
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the primary judge had erred in finding Dasreef Pty Limited liable for negligence and breach of contract. Specifically, the court considered whether the primary judge had correctly assessed the evidence regarding the adequacy of safety procedures, the provision of training, and the causal link between any breaches and Mr Hawchar's injuries. The appeal also involved a challenge to the quantum of damages awarded.
The Court of Appeal upheld the primary judge's findings of negligence and breach of contract. The court reasoned that Dasreef Pty Limited had failed to discharge its duty of care to Mr Hawchar by not implementing and enforcing adequate safety protocols and by failing to provide sufficient training. The court found that the evidence supported the conclusion that these failures were causative of Mr Hawchar's injuries. The court also affirmed the primary judge's assessment of damages. Consequently, the appeal was dismissed, and the appellant was ordered to pay 85 per cent of the respondent's costs.
Orders
Orders of the court
Order that the appellant pay 85 per cent of the costs of the respondent.
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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