Mate Ivancic v Nick Zardo

Case [2004] ACTCA 11

MATE IVANCIC v NICK ZARDO
[2004] ACTCA 11 (4 JUNE 2004)

JUDGMENTS AND ORDERS – appeal from decision to award partial relief from liability to pay consent judgement to the extent that judgment sum represented financial benefit procured by fraud (false or misleading statements) – interpretation of s 66 Motor Accidents Act 1998 (NSW) – whether “financial benefit” refers to entire lump sum – whether allows apportionment and partial relief – whether fact that sum represents compromise settlement disallows apportionment – personal injuries from motor vehicle accident – post-settlement surveillance revealed situation inconsistent with claimed disabilities.

JUDGMENTS AND ORDERS – COSTS - whether liability to pay costs should be subject of relief under s 66 – costs previously made subject of relief.

Motor Accidents Act 1988 (NSW), Pt 5, Div 6, ss 64A, 65, 66
Income Tax Assessment Act1936 (Cth), s 51(1)

Zardo v Ivancic [2001] ACTSC 40 (7 May 2001)
Zardo v Ivancic (2001) 161 FLR 228
Zardo v Ivancic [2003] ACTSC 32
Zardo v Ivancic [2003] ACTSC 82
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Toubia v Schwenke [2002] NSWCA 34; (2002) 54 NSWLR 46
McLaurin v Federal Commissioner of Taxation (1960–61) 104 CLR 381
Allsop v Commissioner of Taxation (1964–65) 113 CLR 341
Commissioner of Taxation v CSR Ltd (2000) 104 FCR 44, 178 ALR 288
Ronpibon Tin NLv Federal Commissioner of Taxation (1949) 78 CLR 47
Kidston Goldmines Ltd v Federal Commissioner of Taxation (1991) 30 FCR 77
Federal Commissioner of Taxation v Manchester UnityIOOF (1993) 113 ALR 113
Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 15 – 2003
No. ACTCA 37 - 2003
No. SC 772 of 2000

Judges:        Higgins CJ, Gray and Gyles JJ
Court of Appeal of the Australian Capital Territory
Date:           4 June 2004

IN THE SUPREME COURT OF THE     )          
  )          
AUSTRALIAN CAPITAL TERRITORY )          No. ACTCA 15 - 2003
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MATE IVANCIC

Appellant

AND:NICK ZARDO

Respondent

ORDER

Judges:  Higgins CJ, Gray and Gyles JJ
Date:  4 June 2004
Place:  Canberra

THE COURT ORDERS THAT:

  1. Appeal dismissed.

  2. Cross appeal allowed as to ground 2(b) but otherwise dismissed.

  3. The appellant Ivancic is to pay the costs of the respondent Zardo of the appeal, and of the cross appeal ground 2(b).

IN THE SUPREME COURT OF THE     )          
  )          
AUSTRALIAN CAPITAL TERRITORY )          No. ACTCA 37 - 2003
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NICK ZARDO

Appellant

AND:MATE IVANCIC

Respondent

ORDER

Judges:  Higgins CJ, Gray and Gyles JJ
Date:  4 June 2004
Place:  Canberra

THE COURT ORDERS THAT:

  1. Appeal allowed.

  2. The order of the Supreme Court of 16 October 2003 be varied by deleting the dismissal of paragraph 2…

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Details
AGLC
Mate Ivancic v Nick Zardo [2004] ACTCA 11
Case
[2004] ACTCA 11
Decision Date

CaseChat Overview and Summary

The Supreme Court of New South Wales considered an appeal and cross-appeal concerning a consent judgment entered into following a motor vehicle accident. The appellant, Mate Ivancic, had obtained a consent judgment against the respondent, Nick Zardo, for damages arising from personal injuries. However, subsequent surveillance revealed a situation inconsistent with the claimed disabilities, leading Mr. Zardo to seek relief from the judgment. The primary dispute revolved around whether Mr. Zardo was entitled to partial relief from the judgment sum on the basis that a portion of it represented a financial benefit procured by fraud, specifically through false or misleading statements made by Mr. Ivancic.

The court was required to determine the interpretation of section 66 of the *Motor Accidents Act 1998* (NSW). Specifically, the court had to decide whether the term "financial benefit" within section 66 referred to the entire lump sum awarded by the consent judgment or if it allowed for apportionment and partial relief where part of the sum was obtained by fraud. A further issue was whether the fact that the judgment sum represented a compromise settlement precluded such apportionment and partial relief. The court also considered whether liability for costs should be subject to relief under section 66, noting that costs had previously been made subject to relief.

The court dismissed the appeal brought by Mr. Ivancic. It allowed the cross-appeal brought by Mr. Zardo in relation to ground 2(b), but otherwise dismissed the cross-appeal. The reasoning applied by the court, though not detailed in the provided text, ultimately led to the conclusion that partial relief from the consent judgment was permissible under section 66 of the *Motor Accidents Act 1998* (NSW), even where the sum represented a compromise settlement, if a portion of that sum was demonstrably procured by fraud.

Consequently, the appellant, Mr. Ivancic, was ordered to pay the costs of the respondent, Mr. Zardo, for both the appeal and the successful ground 2(b) of the cross-appeal.

Orders

Orders of the court

1.

Appeal dismissed.

2.

Cross appeal allowed as to ground 2(b) but otherwise dismissed.

3.

The appellant Ivancic is to pay the costs of the respondent Zardo of the appeal, and of the cross appeal ground 2(b).

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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