Kabic v AAI Limited t/as GIO (No 2) - [2019] NSWCA 311

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kabic v AAI Limited t/as GIO (No 2) [2019] NSWCA 311
Hearing dates: On the papers; Respondent’s submissions filed 1 November 2019; Appellant’s submissions filed 8 November 2019
Decision date: 19 December 2019
Before: Meagher JA at [1];
White JA at [1];
McCallum JA at [1]
Decision:
(1)   Set aside order 1 entered on 16 March 2018 and in its place give judgment for the appellant against the respondent in the sum of $986,464.91.
(2)   Order that as between the appellant and the respondent such judgment is to take effect as and from 16 March 2018.
(3) Judgment for the second cross respondent against the respondent/cross appellant pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $545,115.73.
(4)   The respondent/cross appellant pay interest to the second cross respondent in the amount of $157,227.80.
(5)   In relation to Orders 1 and 3 above note:
(a)    payment of the amount of $545,115.73 is to be made to the second cross respondent by the respondent/cross appellant;
(b) payment of the above amount of $545,115.73 to the second cross respondent satisfies and discharges the appellant's obligation, pursuant to s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the second cross respondent in the agreed amount of $545,115.73;
(c) payment of the above amount of $545,115.73 to the second cross respondent pursuant to s 151Z(1)(e1) of the Workers Compensation Act 1987 (NSW) partly satisfies and partly discharges the respondent/cross appellant's obligation to the appellant, pursuant to the order against it and in favour of the appellant entered on 16 March 2018 as substituted by Order 1 above; and
(d) payment of the sum of $441,349.18 and interest thereon pursuant to s 101 of the Civil Procedure Act 2005 (NSW) satisfies the appellant's judgment as against the respondent/cross appellant.

Catchwords: JUDGMENTS AND ORDERS — interest — award of on judgment — where appeal successful — whether post-judgment interest should run from date of first instance orders or orders allowing appeal
Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 100, 101
Workers Compensation Act 1987 (NSW), s 151Z
Civil Liability Act 2002 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), r 36.4
Cases Cited: Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99
Government Insurance Office (NSW) v Healey (No 2) (1991) 22 NSWLR 380
Hartley Poynton Ltd v Ali [2005] VSCA 53
Kabic v AAI Limited t/as GIO [2019] NSWCA 247
Najdovski v Crnojlovic (No. 2) [2008] NSWCA 281
Nicol v Allyacht Spas Pty Ltd (No. 2) (1988) 165 CLR 306; [1988] HCA 48
Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Category: Costs
Parties: Milan Kabic (Appellant/First Cross-Respondent)
AAI Limited t/as GIO (Respondent/Cross-Appellant)
Workers Compensation Nominal Defendant (Second Cross-Respondent)
Representation:
Counsel:
B J Gross QC (Appellant/First Cross-Respondent)
R Perla (Respondent/Cross-Appellant)
N E Chen SC with J C Lee (Second Cross-Respondent)
Solicitors:
Carters Law…

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: [2019] NSWCA 311
Decision Date: 19 December 2019

CaseChat Overview and Summary

The case of *Kabic v AAI Limited t/as GIO (No 2)* concerned an appeal before the Court of Appeal of New South Wales. The dispute revolved around the date from which post-judgment interest should accrue, particularly following a successful appeal that resulted in a substituted judgment. The appellant, Mr. Kabic, sought to have interest run from the date of the original first instance orders, while the respondent, AAI Limited (trading as GIO), contended that interest should only commence from the date of the appellate court's orders.

The primary legal issue before the Court of Appeal was whether, upon a successful appeal that substituted the original judgment, post-judgment interest should be calculated from the date of the initial judgment at first instance or from the date of the appellate court's orders. This question was central to determining the quantum of interest payable by the respondent to the appellant.

The Court of Appeal determined that where an appellate court substitutes a judgment for that of the court below, the substituted judgment should be treated as if it were the judgment of the appellate court from the date of its orders. However, the court also considered the specific circumstances of the case, including the operation of section 151Z of the *Workers Compensation Act 1987* (NSW). The court ordered that the original order entered on 16 March 2018 be set aside and replaced with a judgment for the appellant against the respondent in the sum of $986,464.91. Crucially, the court ordered that this substituted judgment was to take effect as from 16 March 2018. Further orders addressed a judgment for a second cross-respondent and the allocation of payments to satisfy various obligations, including the appellant's judgment against the respondent/cross-appellant.

Orders

Orders of the court

(1) Set aside order 1 entered on 16 March 2018 and in its place give judgment for the appellant against the respondent in the sum of $986,464.91.

(2) Order that as between the appellant and the respondent such judgment is to take effect as and from 16 March 2018.

(3) Judgment for the second cross respondent against the respondent/cross appellant pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $545,115.73.

(4) The respondent/cross appellant pay interest to the second cross respondent in the amount of $157,227.80.

(5) In relation to Orders 1 and 3 above note:

(a) payment of the amount of $545,115.73 is to be made to the second cross respondent by the respondent/cross appellant;

(b) payment of the above amount of $545,115.73 to the second cross respondent satisfies and discharges the appellant's obligation, pursuant to s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the second cross respondent in the agreed amount of $545,115.73;

(c) payment of the above amount of $545,115.73 to the second cross respondent pursuant to s 151Z(1)(e1) of the Workers Compensation Act 1987 (NSW) partly satisfies and partly discharges the respondent/cross appellant's obligation to the appellant, pursuant to the order against it and in favour of the appellant entered on 16 March 2018 as substituted by Order 1 above; and

(d) payment of the sum of $441,349.18 and interest thereon pursuant to s 101 of the Civil Procedure Act 2005 (NSW) satisfies the appellant's judgment as against the respondent/cross appellant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Kabic v AAI Limited t/as GIO (No 2) [2019] NSWCA 311
Hearing dates:	On the papers; Respondent’s submissions filed 1 November 2019; Appellant’s submissions filed 8 November 2019
Decision date:	19 December 2019
Before:	Meagher JA at [1]; White JA at [1]; McCallum JA at [1]
Decision:	(1) Set aside order 1 entered on 16 March 2018 and in its place give judgment for the appellant against the respondent in the sum of $986,464.91. (2) Order that as between the appellant and the respondent such judgment is to take effect as and from 16 March 2018. (3) Judgment for the second cross respondent against the respondent/cross appellant pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) in the amount of $545,115.73. (4) The respondent/cross appellant pay interest to the second cross respondent in the amount of $157,227.80. (5) In relation to Orders 1 and 3 above note: (a) payment of the amount of $545,115.73 is to be made to the second cross respondent by the respondent/cross appellant; (b) payment of the above amount of $545,115.73 to the second cross respondent satisfies and discharges the appellant's obligation, pursuant to s 151Z(1)(b) of the Workers Compensation Act 1987 (NSW), to repay workers compensation payments made to him by the second cross respondent in the agreed amount of $545,115.73; (c) payment of the above amount of $545,115.73 to the second cross respondent pursuant to s 151Z(1)(e1) of the Workers Compensation Act 1987 (NSW) partly satisfies and partly discharges the respondent/cross appellant's obligation to the appellant, pursuant to the order against it and in favour of the appellant entered on 16 March 2018 as substituted by Order 1 above; and (d) payment of the sum of $441,349.18 and interest thereon pursuant to s 101 of the Civil Procedure Act 2005 (NSW) satisfies the appellant's judgment as against the respondent/cross appellant.
Catchwords:	JUDGMENTS AND ORDERS — interest — award of on judgment — where appeal successful — whether post-judgment interest should run from date of first instance orders or orders allowing appeal
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 100, 101 Workers Compensation Act 1987 (NSW), s 151Z Civil Liability Act 2002 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), r 36.4
Cases Cited:	Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 Government Insurance Office (NSW) v Healey (No 2) (1991) 22 NSWLR 380 Hartley Poynton Ltd v Ali [2005] VSCA 53 Kabic v AAI Limited t/as GIO [2019] NSWCA 247 Najdovski v Crnojlovic (No. 2) [2008] NSWCA 281 Nicol v Allyacht Spas Pty Ltd (No. 2) (1988) 165 CLR 306; [1988] HCA 48 Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2
Category:	Costs
Parties:	Milan Kabic (Appellant/First Cross-Respondent) AAI Limited t/as GIO (Respondent/Cross-Appellant) Workers Compensation Nominal Defendant (Second Cross-Respondent)
Representation:	Counsel: B J Gross QC (Appellant/First Cross-Respondent) R Perla (Respondent/Cross-Appellant) N E Chen SC with J C Lee (Second Cross-Respondent) Solicitors: Carters Law…