Gem v State of New South Wales (No 2)

[2017] NSWDC 134

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:
Ms E Welsh (Plaintiff)
Ms G Mahony (Defendant)

  Solicitors:
Bourke Love (Plaintiff)
McCabes (Defendant)

File Number(s):

2016/64676

Publication restriction:

Yes

Judgment

Background

1. 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

2. 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

3. I make the following orders:

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:

1. The sum of $1275.55 is to be paid to Medicare Australia pursuant to a Notice of Charge for that amount;

2. 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.

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Decision last updated: 05 June 2017