Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Maestrale v Aspite [2014] NSWCA 182 Hearing dates: 17 December 2013 Decision date: 06 June 2014 Before: Beazley P at [1];
Macfarlan JA at [141];
Barrett JA at [142]Decision: (1) Appeal allowed.
(2) Set aside the award of damages made by her Honour and in lieu order that the respondents pay to the appellant damages in the sum of $273,298 together with interest calculated in accordance with Supreme Court Practice Note 16 (16 June 2010).
(3) Set aside the costs order made by the trial judge and order that the respondents pay the appellant's costs of trial.
(4) Order that the respondents pay the appellant's costs of the appeal.
(5) Direct the parties to bring in short minutes of order to reflect the judgment sum to which the appellant is entitled including both damages and interest.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: COSTS - departing from the general rule - Uniform Civil Procedure Rules 2005, r 42.1 - conduct of parties - misconduct - adverse credibility findings
DAMAGES - measure of damages in actions for tort - assessment of future possibilities or probabilities - evaluative assessment
DAMAGES - measure of damages in actions for tort - deductibility of collateral benefits - where benefit derives from private arrangement with a third party
APPEALS - interference with discretion of court below - need to establish error
APPEALS - general principles - interference with judge's findings of fact - functions of appellate court - where findings based on credibility of witnesses
INTEREST - pre-judgment interest - rate of interest - principles guiding award of interest - Supreme Court Practice Note 16Legislation Cited: Civil Procedure Act 2005
Family Provision Act 1982
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005Cases Cited: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries [1951] 1 All ER 873
Apostolidis v Kalenik (No 2) [2011] VSCA 329
Arian v Nguyen [2001] NSWCA 5
Batchelor v. Burke [1981] HCA 30; 148 CLR 448
Bennett v Jones [1977] 2 NSWLR 355
Chambers v Jobling (1986) 7 NSWLR 1
Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Fox v Percy [2003] HCA 22; 214 CLR 118
Hexiva Pty Ltd v Lederer (No 2) [2007] NSWSC 49
Heydon v NRMA Ltd (No 2) [2001] NSWCA 445; 53 NSWLR 600
House v R [1936] HCA 40; 55 CLR 499
Lovell v Lovell [1950] HCA 52; 81 CLR 513
Mannix v Loumbos [2000] NSWCA 32
Marine Board of Launceston v Minister of State for the Navy [1945] HCA…
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- AGLC
- Maestrale v Aspite [2014] NSWCA 182
- Case
- [2014] NSWCA 182
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the appellate court were whether the trial judge had erred in her assessment of damages, particularly concerning the deductibility of collateral benefits and the evaluation of future possibilities. Furthermore, the court had to consider whether the trial judge's adverse credibility findings were sound and whether the costs order made at trial was appropriate, departing from the general rule that costs follow the event.
The appellate court found that the trial judge had erred in her assessment of damages by incorrectly allowing a deduction for a collateral benefit that arose from a private arrangement, which was not deductible. The court also found that the trial judge had made an error in her approach to assessing future probabilities. Consequently, the appeal was allowed, the original award of damages was set aside, and a revised sum of $273,298 was awarded to the appellant, together with pre-judgment interest. The costs order made at trial was also set aside, and the respondents were ordered to pay the appellant's costs of both the trial and the appeal.
Orders
Orders of the court
(1) Appeal allowed.
(2) Set aside the award of damages made by her Honour and in lieu order that the respondents pay to the appellant damages in the sum of $273,298 together with interest calculated in accordance with Supreme Court Practice Note 16 (16 June 2010).
(3) Set aside the costs order made by the trial judge and order that the respondents pay the appellant's costs of trial.
(4) Order that the respondents pay the appellant's costs of the appeal.
(5) Direct the parties to bring in short minutes of order to reflect the judgment sum to which the appellant is entitled including both damages and interest.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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