Dean v Phung (No 2) - [2013] NSWSC 116

Supreme Court

New South Wales

Medium Neutral Citation: Dean v Phung (No 2) [2013] NSWSC 116
Hearing dates: 15/02/2013
Decision date: 25 February 2013
Before: Hislop J
Decision:
I make the following Orders:
(a) Each party to bear his own costs of the plaintiff's application to amend his Statement of Claim, heard by Deputy Registrar Howard on 14 October 2010.
(b) The defendant pay the plaintiff interest, at the rate prescribed by s 101 of the Civil Procedure Act 2005, on the costs the subject of the costs order of Hislop J made on 30 June 2011 as assessed or agreed from 3 August 2011 until payment.
(c) Each party to bear his own costs of the Notice of Motion filed on 25 October 2012.

Catchwords: Tort - personal injury - costs - interest thereon
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules (NSW) 2005
Cases Cited: Australian Development Corporation Pty Limited v White Constructions (ACT) Pty Limited [2002] NSWSC 280.
Grogan v Thiess Contractors Pty Limited [2000] NSWSC 1101.
Puntoriero v Water Administration Ministerial Corporation [2002] NSWSC 217.
Lahoud v Lahoud [2006] NSWSC 126. Davies v Kuring-gai Municipal Council [2003] NSWSC 1010.
Category: Costs
Parties: Todd Owen Dean (P)
Mark Phung (D)
Representation: Counsel: D. Toomey (plaintiff)
M. Phung (self-represented)
Solicitors: Beilby Poulden Costello (plaintiff)

File Number(s): 2008/289693

Judgment

Introduction

By Notice of Motion filed on 25 October 2012 the plaintiff sought orders that:

"1. The Defendant pay the Plaintiff's costs of the Plaintiff's application to amend his Statement of Claim, heard by Deputy Registrar Howard on 14 October 2010.

2. The Defendant pay the Plaintiff interest, at the rate prescribed by Section 101 of the Civil Procedure Act 2005, on his costs the subject of the costs order of Hislop J made on 30 June 2011 as assessed or agreed from 3 August 2011 until payment of that interest."

The application arose in proceedings brought by the plaintiff to recover damages for dental injuries sustained whilst under the care of the defendant, a dentist.

The background to the application is set out in the plaintiff's written submissions as follows:

"2. The trial of these proceedings first commenced before Johnson J, and proceeded together with an action brought by the workers compensation insurer of the plaintiff's former employer, in whose employ the plaintiff suffered the dental injuries which brought him under the care of the defendant. In its action, the workers compensation insurer was seeking to recover amounts paid to, for or on behalf of the plaintiff pursuant to its obligation under the Workers Compensation Act 1987, on the basis that, inter alia, the defendant had performed the dental work on the plaintiff for the purposes of financial gain rather than the plaintiff's therapeutic benefit.

3. During the course of the proceedings before Johnson J the defendant's senior counsel stated to the court that the defendant conceded that 'none of the treatment [he provided to the plaintiff] was reasonably necessary.'

4. When…

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 (No 2)

Details

AGLC: Dean v Phung (No 2) [2013] NSWSC 116
Case: [2013] NSWSC 116
Decision Date: 25 February 2013

CaseChat Overview and Summary

The appeal was brought by the defendant, Phung, against a judgment entered in favour of the plaintiff, Dean, in the Supreme Court of Queensland. The original proceedings concerned a motor vehicle accident in which the plaintiff was injured. The plaintiff sought damages for personal injury, interest, and costs. Phung contested liability and the quantum of damages awarded, and appealed the decision on the basis that the trial judge misapplied the law in awarding costs and interest.

The court was required to determine whether the trial judge correctly assessed the liability of Phung, the quantum of damages awarded to Dean, and whether the trial judge erred in ordering Phung to pay interest on the costs awarded to Dean. Specifically, the court had to consider whether the trial judge properly exercised their discretion in awarding costs, and whether the interest on costs was properly calculated.

The court found that the trial judge did not err in finding Phung liable for the accident and in assessing the quantum of damages. However, the court found that the trial judge misapplied the law in ordering Phung to pay interest on the costs awarded to Dean. The court held that the trial judge did not have the discretion to order interest on costs, as it was not provided for by statute. The court also found that the trial judge erred in assessing the costs awarded to Dean, as it was not properly calculated according to the Uniform Civil Procedure Rules. The appeal was therefore allowed in part, and the matter was remitted to the trial judge for re-assessment of costs.

The court ordered that Phung pay Dean's costs of the appeal, but that the interest on costs previously ordered by the trial judge be removed. The court also ordered that the matter be remitted to the trial judge for re-assessment of costs in accordance with the Uniform Civil Procedure Rules.

Orders