John Knezevich as Executor of the Estate of Peter Knezevich (Dec) v Amaca Pty Ltd (Formerly James Hardie and Coy Pty Ltd)
[2014] WASC 8
•16 JANUARY 2014
JOHN KNEZEVICH as Executor of the Estate of PETER KNEZEVICH (DEC) -v- AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) [2014] WASC 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 8 | |
| Case No: | CIV:2610/2011 | ON THE PAPERS | |
| Coram: | LE MIERE J | 16/01/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | JOHN KNEZEVICH as Executor of the Estate of PETER KNEZEVICH (DEC) AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) |
Catchwords: | Application for leave to compromise |
Legislation: | Fatal Accidents Act 1959 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD)
Respondent
Catchwords:
Application for leave to compromise
Legislation:
Fatal Accidents Act 1959 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Respondent : No appearance
Solicitors:
Plaintiff : Slater & Gordon
Respondent : Jarman McKenna
Case(s) referred to in judgment(s):
Nil
1 LE MIERE J: The plaintiff is the executor of the estate of Peter Knezevich who died on 12 November 2011. This action was commenced by the deceased in his lifetime claiming common law damages for mesothelioma. The claim for damages survive for the benefit of the deceased's estate and the plaintiff brings a claim for damages under the Fatal Accidents Act 1959 (WA).
2 The deceased was born on 15 March 1955 and was aged 56 years at the date of his death. He was married to Heather Sugg on 11 January 1986. They separated in May 2003 and were divorced in August 2004. Ms Sugg remarried in September 2005. The deceased did not remarry and was single at the date of his death. There were four children of the marriage, Emily born on 21 June 1989, Peter born on 9 September 1991, Estelle born on 24 February 1995 and James born 20 July 1998. The deceased's two youngest children, Estelle and James, who were aged 16 and 13 years respectively at the date of the deceased's death, were dependent upon his earnings. He was not supporting his other children or his former wife.
3 Liability and quantum of damages were in issue in the proceedings issued by the deceased and remained in issue after the plaintiff, as executor of the estate of the deceased, became plaintiff in the action. There was a mediation conference on 13 December 2012. At the conclusion of the mediation conference an agreement in principle was agreed between the plaintiff and the defendant. The terms of the compromise are reflected in the orders now sought by the plaintiff:
1. There be judgement for the Plaintiff in these proceedings (or deed of compromise entered into to settle the Plaintiff's claim) in the sum of $437,595.30 ('settlement sum').
2. The settlement sum of $437,595.30 be apportioned as follows:
(1) $52,535.74 to Estelle Alison Knezevich (Date of Birth 24 February 1995).
(2) $87,148.24 to James Owen Knezevich-Sugg (Date of Birth 20 July 1998).
(3) $5,285.28 to discharge arrears of maintenance to the Child Support Agency.
(4) $1,400 to Medicare Australia.
(5) $291,226.04 to the deceased's estate.
3. The Plaintiff have leave to compromise the claim for James Owen Knezevich-Sugg in these proceedings pursuant to Order 70 Rule 10 of the Rules of Supreme Court 1971 in the sum of $87,148.24.
4. Within 14 days of the date of this Order the Defendant do pay to the Public Trustee of Western Australia ('Trustee') the sum of $87,148.24 for James Owen Knezevich-Sugg for investment on trust ('the Court Compensation Trust') for the said James Owen Knezevich-Sugg until he attains the age of 18 years, such investment not to be restricted to the common fund.
5. The Defendant pay the Trustee's fees for the term of the Court Compensation Trust.
6. The Trustee of the Court Compensation Trust be empowered and authorised to hold and in its discretion apply the whole or any part of the income and/or capital of the Court Compensation Trust from time to time for the maintenance, advancement or benefit of James Owen Knezevich-Sugg.
7. There be liberty to apply in respect of the investment monies.
8. Within 14 days of the date of this Order the Defendant do pay the sum of $1,400.00 to Medicare Australia.
9. Within 14 days of the date of this Order the Defendant do pay the balance of damages to the Plaintiff.
10. The Defendant do pay party party costs, inclusive of disbursements, agreed in the sum of $13,000, plus the costs of counsel's opinion, agreed at $3,850, plus the costs of bringing the application for leave to compromise (to be taxed if not agreed).
11. Upon payment by the Defendant of the said sums the Defendant shall be discharged from any further liability in respect of all claims by and on behalf of the deceased's relatives pursuant to the Fatal Accidents Act 1954-1984, as amended and the estate of the deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1941, as amended.
4 Estelle turned 18 on 24 February 2013 and by notice dated 20 November 2013 she confirmed that she adopts the action. The plaintiff now seeks leave to compromise the claim of James.
Matters of which the court is satisfied
5 The application is supported by the opinion of independent counsel, Marco Tedeschi, dated 16 September 2013. Mr Tedeschi's opinion is confidential. There has been no waiver of legal professional privilege in the opinion. Mr Tedeschi states that in his opinion the offer made by the defendant is reasonable and it is in the best interest of James to accept the offer. I have read Mr Tedeschi's opinion. I am satisfied that all aspects of the plaintiff's case, and in particular the claim of James, has received proper consideration by Mr Tedeschi and is a reasonable opinion. I have read and considered the affidavit of the plaintiff, John Knezevich, sworn 20 November 2013 in support of this application for leave to compromise. I am satisfied that the plaintiff has considered and understood Mr Tedeschi's opinion, has given proper consideration to the proposed compromise and requests that the court grant leave to compromise in the terms outlined. I have read and considered the affidavit of Luisa Dropulich, the legal practitioner with the conduct of this matter on behalf of the plaintiff, sworn on 26 November 2013. I am satisfied that Ms Dropulich has considered and understands Mr Tedeschi's opinion and has given proper consideration to the proposed compromise.
6 Having regard to the matters set out in the affidavits of Mr Knezevich and Ms Dropulich and the opinion of Mr Tedeschi I am satisfied that the facts relevant to the case of James have been brought together and considered by the plaintiff, his solicitors and independent counsel and I am of opinion that the proposed compromise will be of benefit to James.
Orders
7 I approve the proposed compromise. There will be orders in the terms sought by the plaintiff which are set out earlier in these reasons.
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