Majetic v Nucifora Real Estate Pty Ltd

[2023] NSWSC 1290

Supreme Court

New South Wales

Medium Neutral Citation:

Majetic v Nucifora Real Estate Pty Ltd [2023] NSWSC 1290

Hearing dates:

27 October 2023

Decision date:

31 October 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Discontinuance of proceedings against the second, third and fourth defendants in each of the matters 2020/278984 and 2020/278993 is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

(2)      Each party is to pay its own costs of the proceedings.

Catchwords:

CIVIL PROCEDURE – Approval of discontinuance of proceedings – Personal injury claims against certain defendants – Where plaintiffs under legal incapacity – Whether discontinuance beneficial to plaintiffs’ interests

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 76

Cases Cited:

Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336

Mercedes Holdings Pty Limited v Waters (No 6) [2012] FCA 1412

Category:

Principal judgment

Parties:

Muhamed Marcus Majetic (Plaintiff)
Medin Majetic (Plaintiff)
Nucifora Real Estate Pty Ltd (First Defendant)
Owners Corporation Strata Plan 45367 (Second Defendant)
Angelo Maggiotto (Third Defendant)
Maria Maggiotto (Fourth Defendant)
Marcial Antonio Dias (Fifth Defendant)

Representation:

Counsel:
J Malouf (Plaintiffs)
T Channon (Sol) (First Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiffs)
Barry Nilsson Lawyers (First Defendant)
Mills Oakley Lawyers (Second Defendant)
Holman Webb Lawyers (Third and Fourth Defendants)

File Number(s):

2020/278984; 2020/278993

JUDGMENT

1. This is an application for discontinuance of proceedings against three of five defendants that were commenced by way of statements of claim, in which two of the three plaintiffs are children (the two plaintiffs). The plaintiffs appear by way of their tutor, Mirela Majetic, who is their mother and the third plaintiff.

2. The incident that gave rise to the proceedings occurred on 7 March 2019, when Ms Majetic inspected an apartment for which she had entered into a lease the day before. At the time of the inspection, Ms Majetic was in the company of the two plaintiffs, Medin Majetic (Medin), who was then aged 5 years old, and Muhamed Marcus Majetic (Marcus), who was then aged 8 years old. It is alleged that Medin fell out of a window in the apartment, falling a distance of 9 metres and fracturing his leg. Ms Majetic and Marcus allege that they suffered nervous shock.

3. Statements of claim were filed on 25 September 2020 and amended statements of claim were filed on 21 November 2022. The first defendant is the estate agency that facilitated the inspection of the apartment, the second defendant is the owners’ corporation of the apartment block and the third and fourth defendants are the owners of the apartment as joint tenants. On 6 March 2019, Ms Majetic entered into a lease agreement with the third and fourth defendants in respect of the apartment, to commence on 13 March 2019. The fifth defendant is a tradesperson who was allegedly engaged by the first defendant on 5 March 2019 to install child safety locks on the windows of the apartment.

4. The first, second, third and fourth defendants have each filed a defence disputing liability. On a mention of this matter on 5 September 2023, the plaintiffs noted that the case was being conducted “on the basis that the fifth defendant would not be participating”. He has been validly served and has not filed a notice of appearance.

5. On 5 September 2023, the affected parties informed the Court that agreement had been reached by which the two plaintiffs would discontinue the proceedings against the second, third and fourth defendants (the three defendants). The plaintiffs were directed to file and serve any application for approval of the settlements.

6. The application is supported by a confidential advice on the merits of the case against the three defendants prepared by counsel for the plaintiffs, Jarryd Malouf, affidavits (sworn on 19 October 2023) by the solicitor for all three plaintiffs, Garbis Kolokossian, and affidavits of Ms Majetic (affirmed on 19 October 2023). The orders sought are that the proceedings against the three defendants be discontinued and that each party pay its own costs.

7. The solicitor for the two plaintiffs deposes in each affidavit that, having perused the defences that were filed by the three defendants and a liability report, he is of the opinion that there is no reasonable prospect of success against any of the three defendants. He states that his advice to that effect has been accepted by Ms Majetic, who has instructed him to discontinue the proceedings against those defendants.

8. In each of her affidavits, Ms Majetic states that she received a copy of the expert liability report and has received advice from the solicitor and counsel for the two plaintiffs to the effect that there is currently insufficient evidence for a reasonable cause of action against the three defendants. Her instructions to discontinue proceedings against the three defendants are on the basis that each party pays its own costs. Ms Majetic states that she believes that those instructions are in the best interests of each of the two plaintiffs, and she requests that the Court approve the notice of discontinuation on the basis that each party pay its own costs.

9. The Civil Procedure Act 2005 (NSW) (the Act) relevantly provides as follows:

“76   Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity

(1)   This section applies to proceedings commenced by or on behalf of, or against, any of the following persons:

(a)   a person under legal incapacity,

…

(3)   Except with the approval of the court, there may not be:

(a)   any compromise or settlement of any proceedings to which this section applies, or

(b)   …

as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).

…”

10. A discontinuance of proceedings that, had they been successful, would have benefitted the person under legal incapacity and on terms that each party is responsible for its incurred costs comes within the terms of s 76(3)(a) of the Act as a “compromise or settlement”, and therefore requires the approval of this Court.

11. The Court’s function in a hearing pursuant to s 76 of the Act is protective in nature. In Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336,Hammerschlag J (as his Honour then was), referring to this provision, observed, at [29]:

“The principle is that for the Court to grant approval for a compromise to be entered into by the disable[d] person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable[d] person: Somerset v Ley [1964] 1 WLR 640 …”

12. On the basis of the material before me, I conclude that a discontinuance of the proceedings against the three defendants would be fair and reasonable and in the interests of the two plaintiffs (see Mercedes Holdings Pty Limited v Waters (No 6) [2012] FCA 1412 at [15]). I note that discontinuance of the proceedings does not bar a claim for contribution by the first defendant in the future, although it has failed to issue a cross-claim against the other defendants in accordance with the Court’s timetable.

13. I make the following orders:

1. Discontinuance of proceedings against the second, third and fourth defendants in each of the matters 2020/278984 and 2020/278993 is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

2. Each party is to pay its own costs of the proceedings.

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Decision last updated: 31 October 2023