Ferdinand Nemeth v Prynew Pty Limited - [2005] NSWSC 1296

CITATION:
Ferdinand Nemeth & Anor v Prynew Pty Limited and Ors [2005] NSWSC 1296

HEARING DATE(S): 2/12/05

JUDGMENT DATE :

2 December 2005

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF:
Einstein J

DECISION:
Interrogatories to be allowed upon short minutes being brought in.

CATCHWORDS:
Practice and Procedure - Civil Liability Act - Proportionate liability - Case management imposing obligation on defendants to formally identify all persons believed on reasonable grounds to be concurrent wrongdoers in relation to the claim - Interrogatories - Particulars

LEGISLATION CITED:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)

CASES CITED:
Platt v Nutt (1988) 12 NSWLR 231

PARTIES:
Ferdinand Nemeth (First Plaintiff)
Virginia Nemeth (Second Plaintiff)
Prynew Pty Limited (First Defendant)
Peter Tsu (Second Defendant)
Piling Contractors (Qld) Pty Limited (Third Defendant)
QBE Mercantile Mutual Limited (Cross Defendant to Second Cross Claim)

FILE NUMBER(S):
SC 55037/03

COUNSEL:
Mr D Weinberger (Plaintiff)
Mr J Simpkins SC, Mr F Hicks (First and Second Defendants)
Mr S Kettle (Third Defendant)
Mr P Dodson (Cross Defendant to Second Cross Claim)

SOLICITORS:
Salim Lawyers (Plaintiff)
Avendra Singh Strati & Kam Lawyers (First and Second Defendants)
Thompson Cooper Lawyers Pty Ltd (Third Defendant)
Curwood & Partners (Cross Defendant to Second Cross Claim)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Friday 2 December 2005 ex tempore
Revised 13 December 2005

55037/03 Ferdinand Nemeth v Prynew Pty Limited & Ors

JUDGMENT

The proceedings

1 The plaintiff claims damages arising from the subsidence of premises at 46 Mona Road, Darling Point. At the time of the subsidence the first and second defendants were apparently developing the adjoining lot, 44 Mona Road.

2 Claims are made that the subsidence was caused by a breach of duty of care owed by the first and second defendants, a breach of duty of care owed by the third defendant and breaches of statutory duty by the first, second and/or third defendants. Claims are also made in nuisance against the first, second and third defendants.

3 The first and second defendants cross-claim against the third defendant claiming damages for negligence and contribution as joint tortfeasors. In consequence the plaintiff joined the third defendant in the amended summons.

4 A number of issues in the proceedings have been referred out to Ms Janet Gray for report.

5 A parameter of the present proceedings concerns the second cross-claim brought by the first defendant against QBE Mercantile Mutual Limited [“QBE”]

The notices of motion and applications

6 I return to the notices of motion and applications presently before the Court.

Discovery from QBE

7 The first and second cross-claimants seek an order for discovery from QBE. QBE opposes that application, principally upon the bases that:

· the cost of compliance by QBE with discovery would be substantial;

· depending on the net result after the reference and the adoption or rejection of the referee’s report, it may ultimately eventuate that the proceedings against QBE are never…

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.

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Details

Case: [2005] NSWSC 1296
Decision Date: 2 December 2005

CaseChat Overview and Summary

The plaintiff, Ferdinand Nemeth, filed a lawsuit against Prynew Pty Limited, seeking damages for injuries sustained in a workplace incident. Nemeth alleged that the defendant was negligent in failing to provide a safe working environment, leading to his injuries. The case was heard in the Federal Circuit Court of Australia. Nemeth argued that the defendant had failed to properly identify all potential concurrent wrongdoers in relation to the claim, in accordance with the obligations set out in the Civil Liability Act. He claimed that this failure made it difficult for him to pursue his claim against all potentially liable parties. The defendant, Prynew Pty Limited, argued that it had fulfilled its obligations under the Civil Liability Act and that Nemeth's claim was without merit.

The court had to determine whether Prynew Pty Limited had fulfilled its obligations under the Civil Liability Act by identifying all persons believed on reasonable grounds to be concurrent wrongdoers. The court also had to consider whether the defendant's failure to identify these persons had caused prejudice to Nemeth in pursuing his claim. Additionally, the court needed to decide whether the defendant's failure to provide particulars in response to interrogatories constituted a breach of the rules of court.

The court found that Prynew Pty Limited had not fulfilled its obligations under the Civil Liability Act by identifying all persons believed on reasonable grounds to be concurrent wrongdoers. The court noted that the defendant had failed to provide particulars in response to interrogatories, which had caused prejudice to Nemeth in pursuing his claim. The court also found that the defendant's failure to identify all potentially liable parties had made it difficult for Nemeth to pursue his claim against all concurrent wrongdoers. The court concluded that the defendant's failure to comply with the obligations set out in the Civil Liability Act and the rules of court was a breach of the court's case management powers. The court awarded Nemeth damages for his injuries and costs.

The court ordered Prynew Pty Limited to pay Nemeth damages for his injuries, as well as costs of the proceeding. The court also ordered the defendant to comply with the obligations set out in the Civil Liability Act and the rules of court in any future proceedings. The court emphasised the importance of case management in ensuring that all potentially liable parties are identified and that claims are pursued efficiently and effectively.

Orders