McDonald v Cottenham Nominees Pty Limited

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McDonald v Cottenham Nominees Pty Limited [2013] NSWCA 83

Hearing dates:

10 April 2013

Decision date:

10 April 2013

Before:

Barrett JA

Decision:

1.I order that if and to the extent that an appeal has been initiated by Mrs McDonald, that appeal is dismissed as incompetent.

2.I order that if and to the extent that an application for leave to appeal has been initiated by Mrs McDonald, that application is struck out under rules 13.4 and 14.28 of the Uniform Civil Procedure Rules.

3.I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd of the notice of motion challenging competency.

4.I order that Mrs McDonald pay the costs of Cottenham Nominees Pty Ltd and Dama Enterprises Pty Ltd of the appeal.

5.I make order 1 in the notice of motion filed on 12 November 2012 by Cottenham Nominees Pty Ltd.

[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:

APPEAL - competency - when amount in issue not shown to be at least $100,000

Legislation Cited:

Civil Liability (Non Economic) Loss Order 2010
District Court Act 1973, s 127(2)(c)

Cases Cited:

Petronaitis v Rowles (2012) NSWCA 236

Category:

Interlocutory applications

Parties:

Susan McDonald - Appellant
Cottenham Nominees Pty Limited - First Respondent
Dama Enterprises Pty Limited - Second Defendant

Representation:

Appellant in person
N J Maley - First Respondent
C M Kakakios - Second Respondent
Appellant in person
Gilchrist Connell - First Respondent
Gadens Lawyers - Second Respondent

File Number(s):

2012/93029

 Decision under appeal 

Date of Decision:

2012-03-06 00:00:00

Before:

Murrell SC DCJ

File Number(s):

2010/284885

Judgment

1. I am dealing with a motion filed by the first respondent seeking dismissal of the appeal as incompetent or, by implication, summary disposal of any application for leave to appeal that is on foot.

1. The appellant or prospective appellant, Mrs McDonald, sued in the District Court for damages for injuries she sustained in a fall on the stairs of the residential flat building in which she is a tenant. The District Court judge found that Ms McDonald had not established any entitlement to damages because negligence had not been proved. The proceedings were therefore dismissed.

1. The judge also made findings about the damages that would have been awarded had liability been established. At paragraph 54 of the judgment, her Honour assessed the non-economic loss to be 28% of a most extreme case (that is, a sum equivalent to $72,800, being 14% of the maximum imposed by the Civil Liability (Non Economic) Loss Order 2010) to which was added at paragraph 55, future medical treatment of $22,000. The finding therefore…