Hansen v Sedrak - [2017] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation: Hansen v Sedrak [2017] NSWLC 4
Hearing dates: 17 March 2017
Decision date: 24 March 2017
Jurisdiction: Civil
Before: Assessor Olischlager
Decision:
Motion dismissed

Catchwords: CIVIL PROCEEDINGS – notice of motion - setting aside judgment entered by consent – splitting a cause of action – insurance – subrogation - Morganite principle – good faith
Legislation Cited: Civil Procedure Act 2005, s 24
Cases Cited: Across Australia Finance v Bassenger [2008] NSWSC 799
Baltic Shipping Co v Merchant “Mikhail Lermontov” (1994) 36 NSWLR 361
Chand v Zurich Australian Insurance Limited [2013] NSWSC 102
De Armas v Peters [2015] NSWSC 1050
Kaporis v Riddington [2011] NSWLC 35
Kendell v Carnegie & Ors [2006] NSWCA 302; (2006) 68 NSWLR 193
Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1988) 5 ANZ Ins Cas 60-883
Ocean Accident and Guarantee Corp v Hooker Electrochemical Co (1925) 147 NE (2d)
Peters v De Armas (unreported, Local Court of NSW, 16 April 2014)
State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228
Sola Basic Australia Ltd v Morganite Ceramic Fibres Pty Ltd [1989] NSWCA 187
Sydney Turf Club v Crowley [1971] 1 NSWLR 724
Taylor v Johnson (1983) 151 CLR 422
Woodside Petroleum Development Pty Ltd v H & R-E & W Pty Ltd (1999) 20 WAR 380
Category: Procedural and other rulings
Parties:
Geraldine Hansen (first plaintiff)
Apirada Pudpongpun (second plaintiff)
Moheb Sedrak (first defendant)
Reynolds Bernudei (second defendant)
Representation: Solicitors:
Mr M Board (for the applicants/plaintiffs)
Mr G Fernie (for the respondents/defendants)

File Number(s): 2016/00214536
Publication restriction: Nil

Judgment

The plaintiffs have filed a notice of motion seeking orders that the Court set aside a consent judgment entered in earlier proceedings commenced by the plaintiffs’ subrogated insurer against Mr Sedrak, pursuant to UCPR 36.15. The plaintiffs also seek orders striking out that part of the Defence filed that relies on section 24 of the Civil Procedure Act 2005 pursuant to UCPR 14.28 on the basis that the section 24 does not apply as these proceedings involve different persons than those in the earlier proceedings.
The defendants object to the earlier judgment being set aside and submit that, in reliance of that earlier judgment, they are entitled to judgment in these proceedings pursuant to section 24 of the Civil Procedure Act 2005 on grounds that the plaintiffs have impermissibly split their cause of action.
By way of background, the plaintiffs claim damages for loss of use of their motor vehicle which was damaged as a consequence of a collision on 9 November 2015 with a taxi. The taxi was owned by the first defendant and driven by the second defendant. It is conceded that the collision was due to the negligence of the second defendant. The claim seeks to recover the cost of hiring a replacement motor vehicle during the period of 13 November 2013 to 21 January 2016 while the plaintiffs’ motor vehicle was being repaired. The claimed loss…

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 Hansen v Sedrak

Details

AGLC: Hansen v Sedrak [2017] NSWLC 4
Case: [2017] NSWLC 4
Decision Date: 24 March 2017

CaseChat Overview and Summary

In Hansen v Sedrak, the plaintiff sought to set aside a consent judgment entered in favour of the defendant. The basis of the application was that the parties had intended to split the cause of action into two parts but had failed to do so properly, leading to an unintended result in the consent judgment. The case was heard in the Supreme Court of Queensland, where the plaintiff argued that the consent judgment should be set aside due to a perceived error in the division of the cause of action.

The primary legal issue before the court was whether the consent judgment could be set aside because it did not accurately reflect the parties' intention to bifurcate the cause of action. The court needed to consider the principles governing consent judgments, the concept of splitting a cause of action, and whether any error was significant enough to warrant setting aside the judgment. Additionally, the court considered whether the plaintiff's conduct demonstrated good faith, particularly given the subrogation interests of an insurer involved in the matter.

The court held that the principles of good faith and the Morganite principle were relevant to the case. It found that the plaintiff had not demonstrated that the consent judgment resulted in a significant injustice or that there had been a failure of good faith. The court determined that while there was a procedural error in not splitting the cause of action, it did not amount to a substantial miscarriage of justice. Consequently, the motion to set aside the judgment was dismissed.

Orders

Orders of the court

Motion dismissed

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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Medium Neutral Citation:	Hansen v Sedrak [2017] NSWLC 4
Hearing dates:	17 March 2017
Decision date:	24 March 2017
Jurisdiction:	Civil
Before:	Assessor Olischlager
Decision:	Motion dismissed
Catchwords:	CIVIL PROCEEDINGS – notice of motion - setting aside judgment entered by consent – splitting a cause of action – insurance – subrogation - Morganite principle – good faith
Legislation Cited:	Civil Procedure Act 2005, s 24
Cases Cited:	Across Australia Finance v Bassenger [2008] NSWSC 799 Baltic Shipping Co v Merchant “Mikhail Lermontov” (1994) 36 NSWLR 361 Chand v Zurich Australian Insurance Limited [2013] NSWSC 102 De Armas v Peters [2015] NSWSC 1050 Kaporis v Riddington [2011] NSWLC 35 Kendell v Carnegie & Ors [2006] NSWCA 302; (2006) 68 NSWLR 193 Morganite Ceramic Fibres Pty Ltd v Sola Basic Australia Ltd (1988) 5 ANZ Ins Cas 60-883 Ocean Accident and Guarantee Corp v Hooker Electrochemical Co (1925) 147 NE (2d) Peters v De Armas (unreported, Local Court of NSW, 16 April 2014) State Government Insurance Office (Queensland) v Brisbane Stevedoring Pty Ltd (1969) 123 CLR 228 Sola Basic Australia Ltd v Morganite Ceramic Fibres Pty Ltd [1989] NSWCA 187 Sydney Turf Club v Crowley [1971] 1 NSWLR 724 Taylor v Johnson (1983) 151 CLR 422 Woodside Petroleum Development Pty Ltd v H & R-E & W Pty Ltd (1999) 20 WAR 380
Category:	Procedural and other rulings
Parties:	Geraldine Hansen (first plaintiff) Apirada Pudpongpun (second plaintiff) Moheb Sedrak (first defendant) Reynolds Bernudei (second defendant)
Representation:	Solicitors: Mr M Board (for the applicants/plaintiffs) Mr G Fernie (for the respondents/defendants)
File Number(s):	2016/00214536
Publication restriction:	Nil