Davis v Viglianti (No 2) - [2018] NSWDC 413

District Court

New South Wales

Medium Neutral Citation: Davis v Viglianti (No 2) [2018] NSWDC 413
Hearing dates: 16 and 30 November 2018
Date of orders: 20 December 2018
Decision date: 20 December 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the plaintiff varied to include interest, making a total of $501,989.00.
(2) Plaintiff’s application for indemnity and gross sum costs refused; defendant pay plaintiff’s costs on the ordered basis.

Catchwords: INTEREST AND COSTS – application for interest and for a gross sum costs order under s 98(4) Civil Liability Act 2005 (NSW) – interest awarded – application for gross sum costs order refused – no issue of principle
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 and 98
Cases Cited: Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (No 3) [2018] FCAFC 231
Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863
Ghosh v Miller (No 2) [2018] NSWSC 713
Hamod v New South Wales (No. 13) [2009] NSWSC 756
Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213
Mahommed v Unicomb [2017] NSWCA 65
Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403
Young v Hones (No. 3) [2014] NSWSC 499
Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99
Category: Costs
Parties: Plaintiff: Adam Davis
Defendant: Giancarlo Joseph Viglianti
Representation:
Counsel:
Plaintiff: Mr D Baran
Defendant: Mr M G Wassef (on 30 November 2018)
Solicitors:
Plaintiff: Drexler & Partners Lawyers
Defendant: Saba Lawyers

File Number(s): 2016/192859
Publication restriction: None

Judgment

The plaintiff, a police officer, suffered significant injuries to his right hand when he attended the defendant’s premises in the course of his police duties. He and other officers had been called to the defendant’s home because of texts he had sent to his former girlfriend, who was residing in the same building, which suggested self-harm. The plaintiff did not reply to knocks and calls at his front door. It was late at night, but from the street police could see a light in the living room which revealed a rope of cord dangling from the ceiling. The plaintiff was directed by his superior officer to climb a ladder to look into the room where the rope or cord was hanging. As he did so, the plaintiff rested his open hand on the window sill to steady himself. In the course of so doing, he came into contact with a series of razorblades that had been set into the window sill using Blu-Tack. The plaintiff’s injuries required him to be immediately conveyed to Auburn Hospital where he underwent surgery.
On 15 December 2017 I gave judgment for the plaintiff and made the following orders:

Judgment for the plaintiff for $444,596.

Defendant pay plaintiff’s costs.

The asset freezing order made on 10 October 2017 (in relation to the plaintiff’s notice of motion filed on 6 October 2017) continued until further order.

Liberty to restore in…

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 Davis v Viglianti (No 2)

Details

AGLC: Davis v Viglianti (No 2) [2018] NSWDC 413
Case: [2018] NSWDC 413
Decision Date: 20 December 2018

CaseChat Overview and Summary

In Davis v Viglianti (No 2), the plaintiff sought interest and a gross sum costs order under section 98(4) of the Civil Liability Act 2002 (NSW). The case involved a dispute over costs following a previous judgment in favour of the plaintiff. The defendant opposed the plaintiff’s application for interest and the gross sum costs order, arguing that the application was not warranted on the facts.

The court was required to determine whether interest should be awarded under the statute and whether the plaintiff was entitled to a gross sum costs order. The court considered the relevant statutory provisions and the principle that such orders should only be made in cases of exceptional circumstances. The plaintiff argued that the defendant’s delay in paying the judgment sum constituted exceptional circumstances warranting a gross sum costs order. The court examined the delay and the reasons provided by the defendant, finding that while the delay was regrettable, it did not reach the level of exceptional circumstances necessary for such an order.

The court concluded that the plaintiff was entitled to interest on the judgment sum, which was calculated and added to the total amount owed. However, the court found that the delay did not justify a gross sum costs order. The court emphasised that the order should only be made when there are clear and exceptional circumstances, which were not present in this case. Consequently, the plaintiff’s application for a gross sum costs order was refused, and the defendant was ordered to pay the plaintiff’s costs on the ordered basis.

The final orders of the court were that judgment for the plaintiff was varied to include interest, bringing the total amount owed to $501,989.00, and the plaintiff’s application for indemnity and gross sum costs was refused, with the defendant to pay the plaintiff’s costs on the ordered basis.

Orders

Orders of the court

(1) Judgment for the plaintiff varied to include interest, making a total of $501,989.00.

(2) Plaintiff’s application for indemnity and gross sum costs refused; defendant pay plaintiff’s costs on the ordered basis.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	Davis v Viglianti (No 2) [2018] NSWDC 413
Hearing dates:	16 and 30 November 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the plaintiff varied to include interest, making a total of $501,989.00. (2) Plaintiff’s application for indemnity and gross sum costs refused; defendant pay plaintiff’s costs on the ordered basis.
Catchwords:	INTEREST AND COSTS – application for interest and for a gross sum costs order under s 98(4) Civil Liability Act 2005 (NSW) – interest awarded – application for gross sum costs order refused – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 and 98
Cases Cited:	Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (No 3) [2018] FCAFC 231 Bobb v Wombat Securities Pty Ltd (No 2) [2013] NSWSC 863 Ghosh v Miller (No 2) [2018] NSWSC 713 Hamod v New South Wales (No. 13) [2009] NSWSC 756 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Mahommed v Unicomb [2017] NSWCA 65 Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 Young v Hones (No. 3) [2014] NSWSC 499 Zepinic v Chateau Constructions (Aust) Ltd (No. 2) [2014] NSWCA 99
Category:	Costs
Parties:	Plaintiff: Adam Davis Defendant: Giancarlo Joseph Viglianti
Representation:	Counsel: Plaintiff: Mr D Baran Defendant: Mr M G Wassef (on 30 November 2018) Solicitors: Plaintiff: Drexler & Partners Lawyers Defendant: Saba Lawyers
File Number(s):	2016/192859
Publication restriction:	None