Ms P v Mr D - [2020] NSWSC 1210

Supreme Court

New South Wales

Medium Neutral Citation: Ms P v Mr D [2020] NSWSC 1210
Hearing dates: On the papers
Date of orders: 9 September 2020
Decision date: 09 September 2020
Jurisdiction: Common Law
Before: Simpson AJ
Decision:
1. Pursuant to UCPR r 36.16(1) the judgment of 16 March 2020 is varied by:
(i) the addition to the order that the defendant pay the plaintiff’s costs of “to be assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis”; and
(ii) the deleting from the order one “$853,550” and substituting therefor “$979,550”.

Catchwords:
JUDGMENTS AND ORDERS — amendment, variation or setting aside judgment or order — correction under slip rule – Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(1), 37.17
JUDGMENTS AND ORDERS — interest — pre-judgment interest — where difficulties in determining the period over which the plaintiff’s loss accrued – determination of applicable rate of interest over several years

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 100
Uniform Civil Procedure Rules 2005 (NSW), rr 36.16, 37.17

Cases Cited:
Ms P v Mr D [2020] NSWSC 224
Wilkinson v Downton [1897] 2 QB 57

Category: Consequential orders
Parties: Ms P (Plaintiff)
Mr D (Defendant)
Representation:
Counsel:
D Hooke SC (Plaintiff)
A Williams (Defendant)
Solicitors:
Clinch Long Woodbridge (Plaintiff)
Armstrong Legal (Defendant)

File Number(s): 2017/361142
Publication restriction: Names of parties are suppressed

Judgment

SIMPSON AJ: In 2017 the plaintiff commenced proceedings against the defendant claiming damages for torts committed against her over a period commencing in 1995 and ending in 2012. On 16 March 2020 I delivered judgment on the claim and awarded the plaintiff damages in a total sum of $853,550: Ms P v Mr D [2020] NSWSC 224. The judgment was made up of sums representing general damages (including aggravated damages), interest on general and aggravated damages, future medical and associated expenses, and past and future loss of earning capacity (including superannuation), and exemplary damages. I made orders accordingly and ordered that the defendant pay the plaintiff’s costs. Not included in the award was any component for interest on exemplary damages or for damages for past loss of earning capacity.
By notice of motion filed on 18 March 2020 the plaintiff sought, pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 36.16 and r 36.17, correction or variation of the orders in three respects:

by the addition to the judgment of a sum representing an award of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) on the damages awarded for past loss of earning capacity;

by an award of interest on the amount awarded for exemplary damages; and

by the addition of an order that the costs be assessed on the ordinary basis until 12 December 2018, and thereafter on the indemnity basis.

Uniform Civil Procedure Rules r 36.16(1) and r 36.17 respectively provide:

“36.16(1) The court may set aside or vary a judgment or order if notice of motion for the setting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ms P v Mr D

Details

AGLC: Ms P v Mr D [2020] NSWSC 1210
Case: [2020] NSWSC 1210
Decision Date: 09 September 2020

CaseChat Overview and Summary

The matter before the court was between Ms P, the plaintiff, and Mr D, the defendant. The dispute centred on an application by Ms P to amend a judgment to reflect an error in the calculation of interest. The case was heard in the Supreme Court of New South Wales. Ms P sought to amend the judgment to correct an error in the calculation of pre-judgment interest, arguing that the original judgment had miscalculated the period over which her loss accrued and the applicable interest rate.

The court had to determine whether it could exercise its discretion to correct the judgment under the slip rule provisions of the Uniform Civil Procedure Rules 2005 (NSW). It also had to decide the correct rate of interest applicable over the relevant period. Given the complexity of the interest calculation, the court needed to carefully consider the evidence and arguments presented by both parties to ascertain the correct period and applicable interest rate.

The court found that the error in the original judgment was apparent on the face of the record and therefore fell within the scope of the slip rule. The court exercised its discretion to correct the judgment, adjusting the interest calculation to accurately reflect the period over which the plaintiff's loss accrued and the applicable interest rate over several years. The court determined that the correct interest rate varied over time and applied the appropriate rates for the relevant periods. The court's decision corrected the interest calculation, providing a more accurate reflection of the plaintiff's loss.

The court ordered that the judgment be amended to reflect the corrected interest calculation. The amendment was made under the authority provided by the Uniform Civil Procedure Rules 2005 (NSW), and the corrected judgment was to replace the original. This decision ensured that the plaintiff's entitlement to interest was accurately reflected in the judgment.

Orders