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Dean v Phung

Dean v Phung

Case [2015] NSWSC 816 21 July 2015

Costs

Breach of Contract

Assault

Fraudulent Misrepresentation

Compensatory Damages

Exemplary Damages

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Dean v Phung [2015] NSWSC 816
Hearing dates: 3 July 2015
Date of orders: 21 July 2015
Decision date: 21 July 2015
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1)   The Plaintiff's notice of motion filed 23 September 2013 be dismissed;

(2)   the Plaintiff's notice of motion filed 5 March 2015 be dismissed; and
(3)   the Plaintiff pay Guild Insurance Limited's costs of the notices of motion.
Catchwords:
COSTS – application for costs order against insurer of insolvent defendant – plaintiff sued defendant dentist for grossly excessive dental treatment – insurer conducted defence on behalf of dentist – conceded dental treatment was excessive – plaintiff sued in negligence and assault – plaintiff alleged consent to treatment fraudulently obtained – plaintiff alleged damages not limited by Civil Liability Act because of intentional acts of defendant – defendant admitted negligence but denied assault and fraudulently obtaining consent to treatment – at first instance plaintiff obtained damages for negligence and costs order but balance of claim failed – on appeal plaintiff succeeded in establishing assault and intentional act of defendant – finding that consent procured by fraud also made – plaintiff obtained award of exemplary damages – insurer denied indemnity including for costs at final instance – plaintiff sought costs of proceedings at first instance from insurer – contended that insurer represented that indemnity would not be denied even if fraud or similar conduct established.
HELD: insurer did not make representation – application dismissed.
Legislation Cited: - Civil Liability Act 2002 – s 3B(1), s 21
- Civil Procedure Act 2005 – s 98
- Law Reform (Miscellaneous Provisions) Act 1946 – s 6
Cases Cited: - Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331
- Dean v Phung [2009] NSWSC 1333
- Dean v Phung [2011] NSWSC 653
- Dean v Phung [2012] NSWCA 223
- Dean v Phung (No 2) [2013] NSWSC 116
- Demagogue Pty Ltd v Ramensky [1992] FCA 557; 39 FCR 31
- Dymocks Franchise Systems (NSW) Pty Ltd v Todd (No 2) [2004] UKPC 39; [2004] 1 WLR 2807
- FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
- HRX Pty Ltd v Scott [2013] NSWSC 451
- Knight v FP Special Assets Ltd (1992) 174 CLR 178
- Lam v Ausintel Investments Australia Pty Ltd (1990) 97 FLR 458
- Murphy v Young & Co's Brewery & Anor [1997] 1 WLR 1591
- QBE Insurance (Australia) Ltd v Hotchin [2013] NSWSC 315
- Selig v Wealthsure Pty Ltd [2015] HCA 18
- TGA Chapman Ltd v Christopher [1998] 1 WLR 12
Category: Principal judgment
Parties: Todd Owen Dean – Plaintiff
Dr Mark Van Thien Phung – Defendant
Guild Insurance Limited (GIL) – Third Party
Representation:
Counsel:
D.R.J. Toomey – Plaintiff
B.J.A. Shields – Third Party
Solicitors:
Beilby Poulden Costello – Plaintiff
Guild Legal Ltd – Defendant
Meridian Lawyers – Third Party

File Number(s): 2008/289693
Publication restriction: Nil

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 Dean v Phung

Details

AGLC: Dean v Phung [2015] NSWSC 816
Case: [2015] NSWSC 816
Decision Date: 21 July 2015

CaseChat Overview and Summary

The plaintiff, Dean, brought an action against the defendant, Phung, a dentist, for grossly excessive dental treatment. Phung's insurer conducted the defence, conceding the excessiveness of the treatment. Dean's case was premised on both negligence and assault, with an allegation that consent to the treatment was fraudulently obtained. Dean sought to limit the damages by the Civil Liability Act on the basis of intentional acts by Phung. Phung admitted negligence but denied both the assault and the fraudulent procurement of consent. At first instance, Dean was awarded damages for negligence and a costs order but the balance of the claim failed. On appeal, Dean succeeded in establishing that Phung had committed assault and intentional acts, including fraudulently obtaining consent. As a result, Dean was awarded exemplary damages. The insurer denied indemnity for the costs at the final instance. Dean then sought the costs of the proceedings from the insurer, arguing that the insurer had represented that indemnity would not be denied even if fraud or similar conduct was established.

The central legal issues in this case were whether the insurer made any representations regarding indemnity, and if so, whether Dean was entitled to the costs of the proceedings from the insurer. The court examined the conduct of the insurer and the evidence presented to determine if there was any such representation made. It was crucial to establish whether the insurer's conduct could be construed as a representation that would bind them to indemnify Dean for costs, irrespective of the outcome of the fraud allegations.

The court found that the insurer did not make any such representation. The evidence did not support Dean's contention that the insurer had assured him that indemnity would not be denied even if fraud or similar conduct was established. The court emphasised that the insurer's duty to indemnify was contingent upon the terms of the policy and the conduct of the defendant, not on any external assurances provided during the litigation. Consequently, the court dismissed Dean's application for costs, finding no basis to hold the insurer liable for the costs of the proceedings.

Orders