Hasted v Mackay - [2020] QSC 58

SUPREME COURT OF QUEENSLAND

CITATION:

Hasted v Mackay & Anor [2020] QSC 58

PARTIES:

RE-ARNA BROOKLYN HASTED by her litigation guardian MELEESA DEANN HASTED

(Plaintiff)

v

JOSHUA STEWART MACKAY

(First Defendant)

And

AAI LIMITED ABN 48 005 297 807
(Second Defendant)

FILE NO/S:

BS 5191/18

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

3 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

27 March 2020

JUDGE:

Bowskill J

ORDERS:

On the basis that the Court rejects the argument on behalf of the second defendant as to the method of calculation of the estimate of fund management fees, an order will be made in terms of the draft order provided by the plaintiff’s counsel (subject to minor corrections) sanctioning the compromise of the proceeding under s 59 of the Public Trustee Act 1978 (Qld)

CATCHWORDS:

DAMAGES – AWARD – MEASURE OF DAMAGES – PERSONAL INJURIES – NEGLIGENCE CAUSING INCAPACITY TO MANAGE OWN AFFAIRS – COSTS OF MANAGEMENT FUND – application for sanction of compromise of plaintiff’s claim for damages for personal injuries – where an administrator will be appointed to receive and manage the compromise sum – where the compromise sum includes an amount for primary damages and an amount for fund management fees – whether the estimate of the fund management fees should be calculated on the whole of the amount of the primary damages (less statutory refunds) – or whether there should first be a deduction for the estimated indemnity costs differential, before calculation of the estimated fund management fees, on the basis that the indemnity costs differential will be paid out of the fund within a short period of time after the compromise is sanctioned

Public Trustee Act 1978 (Qld) s 59

Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665
Gray v Richards (2014) 253 CLR 660
Gray v Richards (No 2) [2011] NSWSC 1502
Nicotra v State of Queensland [2018] 3 Qd R 219
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Richards v Gray (2013) 66 MVR 16; [2013] NSWCA 402
Todorovic v Waller (1981) 150 CLR 402

COUNSEL:
M Williams for the plaintiff

D Bray (sol) for the second defendant

SOLICITORS:
Shine Lawyers for the plaintiff

Bray Lawyers Pty Ltd for the second defendant

Following a mediation earlier this year, the parties agreed to compromise the plaintiff’s claim for damages for personal injuries the subject of this proceeding. The plaintiff applies for the sanction by the Court of the compromise, under s 59 of the Public Trustee Act 1978 (Qld).
The compromise was on terms that the defendants pay a sum of money to the plaintiff (the settlement sum) and, in addition, the defendants agreed to pay “as damages the amount of reasonable administration fees and charges payable on any fund remitted to an administrator for administration on behalf of the plaintiff in a sum to be agreed or failing agreement as is ordered by the court upon the application for sanction” (I will call these the fund management damages). The defendants also agreed…

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 Hasted v Mackay

Details

AGLC: Hasted v Mackay [2020] QSC 58
Case: [2020] QSC 58
Decision Date: 3 April 2020

CaseChat Overview and Summary

The case of Hasted v Mackay involved a dispute regarding the award of damages for personal injuries sustained due to negligence. The plaintiff, Hasted, sought to compromise her claim for damages with the defendant, Mackay. The case was heard in the Queensland Court of Appeal. The primary legal issue was the calculation method for estimating the fund management fees in a Costs of Management Fund. Specifically, it was contested whether these fees should be calculated based on the entire amount of primary damages (less statutory refunds) or if a deduction should be made first for the estimated indemnity costs differential, with the latter being paid out of the fund shortly after the compromise is sanctioned.

The court examined the relevant statutory provisions and considered the purpose of the Costs of Management Fund. The court rejected the argument that the estimate of fund management fees should be reduced by the indemnity costs differential. The reasoning was that the fund management fees are a cost of managing the fund, and the indemnity costs differential is a liability that will be paid out of the fund within a short period, thus not affecting the ongoing management costs. Accordingly, the fees should be calculated on the full amount of primary damages less statutory refunds, without making any deductions for the indemnity costs differential.

In light of the above, the court sanctioned the compromise as proposed by the plaintiff, subject to minor corrections in the draft order provided by the plaintiff's counsel. The compromise was approved under section 59 of the Public Trustee Act 1978 (Qld).

Orders

Orders of the court

On the basis that the Court rejects the argument on behalf of the second defendant as to the method of calculation of the estimate of fund management fees, an order will be made in terms of the draft order provided by the plaintiff’s counsel (subject to minor corrections) sanctioning the compromise of the proceeding under s 59 of the Public Trustee Act 1978 (Qld)

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Hasted v Mackay & Anor [2020] QSC 58
PARTIES:	RE-ARNA BROOKLYN HASTED by her litigation guardian MELEESA DEANN HASTED (Plaintiff) v JOSHUA STEWART MACKAY (First Defendant) And AAI LIMITED ABN 48 005 297 807 (Second Defendant)
FILE NO/S:	BS 5191/18
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	3 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	27 March 2020
JUDGE:	Bowskill J
ORDERS:	On the basis that the Court rejects the argument on behalf of the second defendant as to the method of calculation of the estimate of fund management fees, an order will be made in terms of the draft order provided by the plaintiff’s counsel (subject to minor corrections) sanctioning the compromise of the proceeding under s 59 of the *Public Trustee Act* 1978 (Qld)
CATCHWORDS:	DAMAGES – AWARD – MEASURE OF DAMAGES – PERSONAL INJURIES – NEGLIGENCE CAUSING INCAPACITY TO MANAGE OWN AFFAIRS – COSTS OF MANAGEMENT FUND – application for sanction of compromise of plaintiff’s claim for damages for personal injuries – where an administrator will be appointed to receive and manage the compromise sum – where the compromise sum includes an amount for primary damages and an amount for fund management fees – whether the estimate of the fund management fees should be calculated on the whole of the amount of the primary damages (less statutory refunds) – or whether there should first be a deduction for the estimated indemnity costs differential, before calculation of the estimated fund management fees, on the basis that the indemnity costs differential will be paid out of the fund within a short period of time after the compromise is sanctioned Public Trustee Act 1978 (Qld) s 59 Government Insurance Office of NSW v Rosniak (1992) 27 NSWLR 665 Gray v Richards (2014) 253 CLR 660 Gray v Richards (No 2) [2011] NSWSC 1502 Nicotra v State of Queensland [2018] 3 Qd R 219 Nominal Defendant v Gardikiotis (1996) 186 CLR 49 Richards v Gray (2013) 66 MVR 16; [2013] NSWCA 402 Todorovic v Waller (1981) 150 CLR 402
COUNSEL:	M Williams for the plaintiff D Bray (sol) for the second defendant
SOLICITORS:	Shine Lawyers for the plaintiff Bray Lawyers Pty Ltd for the second defendant