Jessica Irene Hulanicki Bhnf Helen Hulanicki v Clare Louise Walton (No 2)

[2014] ACTSC 174

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

JESSICA IRENE HULANICKI BHNF HELEN HULANICKI v CLARE LOUISE WALTON (No 2)

Citation:

[2014] ACTSC 174

Hearing Date(s):

29 April 2014

DecisionDate:

24 July 2014

Before:

Burns J

Decision:

1. The judgment sum handed down on 7 March 2014 is amended to $3,946,775.98 together with a sum to compensate for the cost of fund management.

2. Damages are awarded to compensate the plaintiff for the cost of fund management in the sum of $1,307,172.00.

3. The parties be granted leave to re-list the matter for any argument in relation to costs.

Category:

Principal Judgment

Catchwords:

DAMAGES – earlier judgment amended pursuant to the slip rule – compulsory deductions to Centrelink and Medicare

DAMAGES – cost of fund management – Richards v Gray [2013] NSWCA 402 applied – whether management fees should be calculated based on evidence of the plaintiff’s actuary

Cases Cited:

Richards v Gray [2013] NSWCA 402

Parties:

Jessica Irene Hulanicki BHNF Helen Hulanicki (Plaintiff)

Clare Louise Walton (Defendant)

Representation:

Counsel:

Mr A Bartley SC with Mr N Kitchin (Plaintiff)

Ms C Power (Defendant)

Solicitors:

Ken Cush & Associates (Plaintiff)

DLA Piper Australia (Defendant)

File Number(s):

SC 300 of 2009

1. On 7 March this year I ordered that judgment be entered for the plaintiff in the sum of $4,227,676.32, together with a sum to compensate her for the cost of fund management to be calculated by the parties. The parties have not been able to agree on the cost of fund management, and I have now received further submissions directed to this issue.

1. I am grateful to the parties for detecting an error in my judgement, in that I neglected to deduct compulsory deductions to Medicare and Centrelink. The parties are in agreement that the appropriate judgement sum is $3,946,775.98, and they invite me to amend my judgement of 7 March 2014 pursuant to the slip rule. I do so.

1. Turning now to the question of the amount to be allowed for fund management, the plaintiff says that I should adopt a median figure between those arrived at by her actuary and the defendant’s actuary. Adopting that course results in an award of damages for fund management of $1,395,185.31. On the other hand, the defendant submits that I should calculate the cost of fund management based upon the evidence of the plaintiff’s actuary, but consistent with my earlier decision to follow the New South Wales authority of Richards v Gray [2013] NSWCA 402. Adopting that course results in an award of damages for fund management of $1,307,172.00.

1. As the plaintiff notes, the assessment of damages is not an exact science. It involves estimation, approximation and assumptions. The calculations performed by the forensic actuaries are based on a schedule of maximum fees published by the Public Trustee of the Australian Capital Territory. The Public Trustee has a discretion to charge lower fees, and it is not unrealistic to contemplate that that may occur over the life of such a significant fund. As the defendant points out, the fact that calculations have been made on the maximum fees chargeable by the Public Trustee gives the Court comfort in accepting the lower figure of $1,307,172.00.

1. Accordingly, there will be an award of damages to compensate the plaintiff for the cost of fund management in the sum of $1,307,172.00.

1. I grant the parties leave to re-list the matter for any argument in relation to costs.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 24 July 2014