District Court
New South Wales
Medium Neutral Citation: Gem v State of New South Wales (No 2) [2017] NSWDC 134 Hearing dates: 2 June 2017 (On the papers) Date of orders: 05 June 2017 Decision date: 05 June 2017 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. The plaintiff’s damages for funds management charges are assessed in the sum of $136,720;
2. Judgment for the plaintiff in the sum of $491,275;
3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis;
4. The Exhibits may be returned;
5. Pursuant to s 77(3) of the Civil Procedure Act 2005, the defendant is directed to disburse the judgment sum the subject of Order 2 above as follows:
(a) The sum of $1275.55 is to be paid to Medicare Australia pursuant to a Notice of Charge for that amount;
(b) The remaining balance of the judgment monies ($489,999.45) less any statutory charges from Centrelink and Medicare Australia is to be paid to the NSW Trustee and Guardian to be invested on the plaintiff’s behalf until her majority or the further order of a Court or Tribunal having jurisdiction to determine the plaintiff’s legal capacity;
6. Liberty to apply for further or other orders if required.Catchwords: TORTS – personal injury damages – further damages for funds management charges following assessment of other damages Legislation Cited: Civil Procedure Act 2005, s 77(3) Cases Cited: Gem v State of New South Wales [2017] NSWDC 108 Category: Principal judgment Parties: Gem (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
Solicitors:
Ms E Welsh (Plaintiff)
Ms G Mahony (Defendant)
Bourke Love (Plaintiff)
McCabes (Defendant)
File Number(s): 2016/64676 Publication restriction: Yes
Judgment
Background
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On 19 May 2017, the plaintiff’s damages were assessed in the sum of $354,555, not including funds management charges: Gem v State of New South Wales [2017] NSWDC 108.
Agreement on additional evidence
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On the basis of the interpretation of two reports obtained from a forensic accountant, the parties have agreed that the amount of $136,720 should be added to the plaintiff’s damages on account of funds management charges, resulting in a judgment for the plaintiff in the sum of $491,275. That evidentiary agreement enables final orders to be made in the proceedings.
Orders
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I make the following orders:
The plaintiff’s damages for funds management charges are assessed in the sum of $136,720;
Judgment for the plaintiff in the sum of $491,275;
The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis;
The Exhibits may be returned;
Pursuant to s 77(3) of the Civil Procedure Act 2005, the defendant is directed to disburse the judgment sum the subject of Order 2 above as follows:
The sum of $1275.55 is to be paid to Medicare Australia pursuant to a Notice of Charge for that amount;
The remaining balance of the judgment monies ($489,999.45) less any statutory charges from Centrelink and Medicare Australia is to be paid to the NSW Trustee and Guardian to be invested on the plaintiff’s behalf until her majority or the further order of a Court or Tribunal having jurisdiction to determine the plaintiff’s legal capacity;
Liberty to apply for further or other orders if required.
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- AGLC
- Gem v State of New South Wales (No 2) [2017] NSWDC 134
- Case
- [2017] NSWDC 134
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the funds management charges, which were incurred due to the need to manage Gem's damages award until she reached a certain age. It considered the statutory obligations under the Guardianship Act 1987, which mandated the appointment of a trustee to manage the funds. The court had to determine if these charges were properly incurred and whether they were a legitimate part of the plaintiff’s damages.
The court found that the funds management charges were necessary and reasonable, given the statutory requirement to protect Gem's interests. It assessed the total amount of these charges to be $136,720, which was then added to the previous damages award, resulting in a total judgment of $491,275. The court directed that part of the judgment sum be paid to Medicare Australia to cover a statutory charge, while the balance was to be invested by the NSW Trustee and Guardian on Gem's behalf until she reached a certain age or until otherwise ordered by a court or tribunal. The defendant was also ordered to pay Gem’s costs of the proceedings.
Orders
Orders of the court
1. The plaintiff’s damages for funds management charges are assessed in the sum of $136,720;
2. Judgment for the plaintiff in the sum of $491,275;
3. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis;
4. The Exhibits may be returned;
5. Pursuant to s 77(3) of the Civil Procedure Act 2005, the defendant is directed to disburse the judgment sum the subject of Order 2 above as follows:
(a) The sum of $1275.55 is to be paid to Medicare Australia pursuant to a Notice of Charge for that amount;
(b) The remaining balance of the judgment monies ($489,999.45) less any statutory charges from Centrelink and Medicare Australia is to be paid to the NSW Trustee and Guardian to be invested on the plaintiff’s behalf until her majority or the further order of a Court or Tribunal having jurisdiction to determine the plaintiff’s legal capacity;
6. Liberty to apply for further or other orders if required.
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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