K and E George Pty Ltd v Survery - [2009] NSWSC 1044

CITATION: K & E George Pty Ltd v Survery [2009] NSWSC 1044

HEARING DATE(S): 25 September 2009

JUDGMENT DATE :
2 October 2009

JUDGMENT OF: Harrison J

DECISION: 1. Order pursuant to s 100 of the Civil Procedure Act 2005 that the first defendant pay interest to the plaintiff on payments made by the plaintiff to the second defendant from the date of each payment to date at rates prescribed by Schedule 5 of the Uniform Civil Procedure Rules 2005.
2. Order the first defendant to pay the plaintiff's costs of these proceedings.
3. Order that there be no order for costs of the plaintiff for any participation by it in the medical negligence proceedings 2006/20221 in this Court.

CATCHWORDS: INTEREST – where employer makes payments of compensation to an injured worker in circumstances creating a liability in a third party to pay damages in respect of the injury – where the employer commences separate proceedings against the third party for declarations and orders under s 151Z Workers' Compensation Act 1987 for repayment and indemnity – where employer claims interest on payments made to worker – where entitlement to interest not in dispute – question of "conventional practice" to apply Court rates - whether employer entitled to interest at UCPR Schedule 5 rates or market rates – COSTS – whether employer entitled to costs of proceedings when repayments made or conceded by third party without orders being pronounced – whether reasonable or necessary to commence proceedings

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules
Workers' Compensation Act 1987

CATEGORY: Procedural and other rulings

CASES CITED: George v Survery [2009] NSWSC 5
Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; (2001) 53 NSWLR 600
Hexiva Pty Ltd v Lederer (2) [2007] NSWSC 49
Hogan v Trustees of the Roman Catholic Church (No 2) [2006] NSWSC 74
Ruby v Marsh [1975] HCA 32; (1975) 132 CLR 642
RW Miller & Co Pty Ltd v The Ship Patris [1975] 1 NSWLR 704
Wallersteiner v Moir (No 2) [1975] 1 QB 373

PARTIES: K & E George Pty Ltd (Plaintiff)
Dr Hafizur Survery (First Defendant)
Kevin George (Second Defendant)

FILE NUMBER(S): SC 20575/2008

COUNSEL: L King SC with M J Walsh (Plaintiff)
M T McCulloch SC (Defendant)

SOLICITORS: Turks Legal (Plaintiff)
Avant Law Pty Ltd (First Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

2 October 2009

20575/2008 K & E George Pty Ltd v Dr Hafizur Survery & Kevin George
JUDGMENT

1 HIS HONOUR : On 12 January 2009 in separate proceedings I decided that the plaintiff's injury for which compensation was payable under the Workers Compensation Act 1987 ("the Act") was caused in circumstances creating a liability in the defendant to pay damages in respect of that injury: see George v Survery [2009] NSWSC 5. These reasons assume familiarity with that decision.

2 K & E George Pty Ltd was the employer of the plaintiff in those proceedings. These proceedings…

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.

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Details

Case: [2009] NSWSC 1044
Decision Date: 2 October 2009

CaseChat Overview and Summary

The dispute between K and E George Pty Ltd and Survey involved the employer's claim for compensation payments made to an injured worker, leading to a third party's liability for damages. The employer initiated separate proceedings against the third party seeking declarations and orders under section 151Z of the Workers' Compensation Act 1987 for repayment and indemnity. The employer also sought interest on the payments made to the worker, with the entitlement to interest not being contested. The central issue was whether the employer was entitled to interest at the rates set by the UCPR Schedule 5 or if the market rates applied under the concept of "conventional practice." Additionally, the court considered whether the employer could claim the costs of the proceedings if the repayments were made or conceded by the third party without the need for orders to be pronounced.

The court examined the principles of conventional practice and whether the employer's entitlement to interest should align with the UCPR Schedule 5 rates or market rates. It was determined that the employer was entitled to interest at the UCPR Schedule 5 rates, as this aligned with the conventional practice in such circumstances. Regarding the costs, the court ruled that the employer could claim the costs of the proceedings even if the repayments were made or conceded by the third party without the necessity of orders being pronounced. This decision was based on the reasoning that the proceedings were reasonable and necessary to secure the employer's rights and ensure proper compensation.

In conclusion, the court held that the employer was entitled to interest at the UCPR Schedule 5 rates and could claim the costs of the proceedings even if the repayments were made or conceded by the third party without orders being pronounced. The decision underscored the importance of conventional practice in determining interest rates and the reasonableness of initiating proceedings to secure rightful compensation.

Orders