Kucinskas v Lane - [2024] NSWSC 373

Supreme Court

New South Wales

Medium Neutral Citation: Kucinskas v Lane [2024] NSWSC 373
Hearing dates: 10 April 2024
Date of orders: 11 April 2024
Decision date: 11 April 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. Judgment is given, pursuant to UCPR rule 16.7, for the plaintiff against the defendant for damages to be assessed and for costs.
2. The matter is listed for directions on 7 May 2024 to set a date for the assessment of damages.
3. The defendant and the trustee in bankruptcy are to be informed within 14 days, of the orders made today.

Catchwords:
CIVIL PROCEDURE – default judgment – where defendant is bankrupt – whether leave from the Federal Court is needed to proceed – where plaintiff’s claim satisfies exception under s 82(2) in the Bankruptcy Act 1999 (Cth) – claim for unliquidated damages arising from an intentional tort or negligence – judgment entered for damages to be assessed and for costs

Legislation Cited:
Bankruptcy Act 1966 (Cth), s 58(3)(b), 82(2)
Civil Procedure Act 2005 (NSW), s 14
Uniform Civil Procedure Rules 2005 (NSW), r 16.7

Cases Cited:
Coventry v Charter Pacific Corporation Ltd (2005) 227 CLR 234; [2005] HCA 67
Doman & Anor v Leadenhall Australia Pty Ltd [2023] SASC 97
Foots v Southern Cross Mine Management (2007) 234 CLR 52; [2007] HCA 56
Ryu v Karadjian [2006] NSWCA 144
Yan v Spyrakis as trustee in bankruptcy for Liu [2022] FCA 872

Category: Procedural rulings
Parties: Jolie Kucinskas (Plaintiff)
Ian Lane (Defendant)
Representation:
Counsel:
Mr R Di Michiel (Plaintiff)
Solicitors:
Premier Compensation Lawyers (Plaintiff)

File Number(s): 2023/356149
Publication restriction: Nil

JUDGMENT

The plaintiff was born in 2001. She alleges that when she was six and seven years of age she was sexually abused by the defendant. He was her babysitter. The plaintiff says that she suffered significant psychological injury as a result of the abuse.
In order to obtain compensation for her injury the plaintiff commenced proceedings against the defendant by the filing of a statement of claim on 9 November 2023.
The defendant has not responded to the commencement of the proceedings. He is in prison. Despite having been served with all appropriate documents, he has taken no interest in the case.
On 25 January 2024 the plaintiff filed a notice of motion seeking default judgment for unliquidated damages: r 16.7 Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 6 March 2024 the Court ordered, inter alia, that the motion be set down for hearing on 10 April 2023 and that if default judgment was entered, that the matter proceed to an assessment of damages.
One of the orders sought in the notice of motion is:

“Assessment hearing fixed on an expedited basis due to the defendant being declared bankrupt.”

The defendant was declared bankrupt on 8 December 2023. A trustee in bankruptcy, Mr Stephen Dixon, was appointed to the defendant’s bankrupt estate.
My initial reaction to the application was that it could not proceed because consent had…

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 Kucinskas v Lane

Details

AGLC: Kucinskas v Lane [2024] NSWSC 373
Case: [2024] NSWSC 373
Decision Date: 11 April 2024

CaseChat Overview and Summary

The plaintiff, Kucinskas, sought damages from the defendant, Lane, who was declared bankrupt, for an alleged intentional tort and negligence. The dispute involved the procedural aspects of seeking damages in the context of the defendant's bankruptcy. The Federal Court was tasked with determining whether the plaintiff's claim was subject to a special procedure under the Bankruptcy Act 1966 (Cth) and whether leave from the Federal Court was necessary to proceed with the claim.

The court was required to decide whether the plaintiff's claim for unliquidated damages arising from an intentional tort or negligence was an exception under section 82(2) of the Bankruptcy Act 1966 (Cth). This involved interpreting the statutory language and understanding the procedural requirements for claims against bankrupts. The court needed to consider whether the plaintiff's claim could proceed without leave from the Federal Court due to its nature as an exception under the Act.

The court concluded that the plaintiff's claim for unliquidated damages arising from an intentional tort or negligence satisfied the exception under section 82(2) of the Bankruptcy Act 1966 (Cth). Therefore, the plaintiff did not need to seek leave from the Federal Court to proceed with the claim. The court entered judgment in favour of the plaintiff for damages to be assessed and for costs. This decision provided clarity on the procedural steps required when seeking damages from a bankrupt defendant for claims involving intentional tort or negligence.

Orders