Moloney v Zhu

[2020] ACTMC 3

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Moloney v Zhu and Anor

Citation:

[2020] ACTMC 3

Hearing Date(s):

26 February 2020

DecisionDate:

4 March 2020

Before:

Acting Chief Magistrate Theakston

Decision:

The plaintiff’s costs are to be assessed in accordance with the Civil Laws (Wrongs) Act 2002, s 181.

Catchwords:

CIVIL LAW – assessment of costs - application of Road Transport (Third Party Insurance) Act 2008 – application of Civil Law (Wrongs) Act 2002 – mandatory final offer – non-economic loss

Legislation Cited:

Civil Laws (Wrongs) Act 2002 s 181

Legislation Act 2001 s 139

Road Transport (Third Party Insurance) Act 2008 s 155

Cases Cited:

Albrecht v Insurance Australia Limited [2016] ACTCA 58

Farah Construction Pty Limited v Say-Dee Pty Limited [2007] HCA 22; 230 CLR 89

Haureliuk v Furler [2012] ACTCA 11; 6 ACTLR 151

Insurance Australia Limited v Anor v Albrecht [2015] ACTSC 68

Mitchell v ACT [2018] ACTSCFC 1; 13 ACTLR 208

Parties:

Paula Moloney (Plaintiff)

Lei Zhu (First Defendant)

Insurance Australia Limited (Second Defendant)

Representation:

Counsel

Mr Andrew Muller (Plaintiff)

Mr Brendan Jones (First and Second Defendants)

File Number(s):

CS 205 of 2018

ACTING CHIEF MAGISTRATE THEAKSTON:

Introduction

1. The parties have made a joint application for the Court to determine which provision applies for the purpose of limiting the costs to be paid by the second defendant to the plaintiff.  The question is significant, because one provision could yield a result of $0.00 and the other a result as high as $10,000, plus disbursements.

Background

1. The matter involved a personal injury claim arising out of a motor vehicle incident.  That claim was resolved by way of consent orders that provided judgement to be entered for the plaintiff against the second defendant for $25,000, plus costs as agreed or assessed.  The defendants’ correspondence to the plaintiff before the settlement expressly stated they were of the view that costs would be subject to the Road Transport (Third Party Insurance) Act 2008 (repealed), s 155(2), although the General form of consent judgment is silent about that assertion.

1. The parties had earlier exchanged the following mandatory final offers which were not accepted:

Plaintiff	Defendant
Damages for non-economic loss	$81,916.27	$0.00
Damages other than non-economic loss	$826.00	$10,000.00
Total	$82,742.27	$10,000.00

1. The application proceeded on the basis that the Civil Laws (Wrongs) Act 2002, s 181 applied to limit the costs payable for modest judgments unless the Road Transport Act, s 155 applied. Those provisions relevantly provide:

181  Maximum costs for claims of $50 000 or less

(1)This section applies if the amount recovered on a claim for personal injury damages is $50 000 or less.

(2)If this section applies—

(a)a lawyer is not entitled to be paid; and

(b)a court (or a taxing officer) must not decide that a lawyer is entitled to be paid; and

(c)a court must not order anyone to pay to a lawyer;

an amount for legal services in relation to the claim that (or that together with…