Muchref by his tutor Mouchrif v Mirvale Pty Ltd; Muchref by his tutor Mouchrif v Workers Compensation Nominal Insurer

[2025] NSWSC 1082

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Muchref by his tutor Mouchrif v Mirvale Pty Ltd; Muchref by his tutor Mouchrif v Workers Compensation Nominal Insurer [2025] NSWSC 1082

Hearing dates:

18 September 2025

Date of orders:

18 September 2025

Decision date:

18 September 2025

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

Proceedings 2022/00044665

(1) I approve the settlement set out in the Consent Judgment pursuant to s 76(4) of the Act.

(2)   Judgment for the plaintiff in the sum set out in paragraph 1 of the Consent Judgment (the Judgment Sum).

(3)   The orders for costs pursuant to paragraphs 2, 2A, 3, 4 and 5.

(4)   I note paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16 and the agreements in paragraphs 17 and 18 of the Consent Judgment.

(5) Pursuant to s 77(3) of the Act, the net Judgment sum after deductions referred to in paragraphs 6, 7, 8, 11 and 12 (if any) of the Consent Judgment, is to be paid by the first defendant into Court or directly to the NSW Trustee and Guardian to be held and applied for the maintenance and education or otherwise for the benefit of the plaintiff.

Proceedings 2023/00205331

(1)   I approve the settlement and order that the proceedings be discontinued pursuant to order 1 of the Consent Judgment.

(2)   Order each party to bear his or its costs of the proceedings.

(3)   Order that the First Amended Cross Claim filed on 6 March 2025 is dismissed with no order as to costs to the intent that the parties to the First Amended Cross Claim pay their own costs.

(4)   I note paragraph 5 and the agreement contained in paragraph 6 of the Consent Judgment.

Catchwords:

CIVIL PROCEDURE — Settlement approval — Consent judgment issued

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 76

Workers’ Compensation Act 1987 (NSW)

Civil Liability Act 2002 (NSW)

Cases Cited:

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

Budini v Sunnyfield [2021] FCA 1540

Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451

Category:

Principal judgment

Parties:

Proceedings 2022/00044665
Yahya Muchref by his tutor Youssef Mouchrif (Plaintiff)
Mirvale Pty Ltd (Defendant/Cross-Claimant)
Workers Compensation Nominal Insurer (Cross-Defendant)

Proceedings 2023/00205331
Yahya Muchref by his tutor Youssef Mouchrif (Plaintiff)
Workers Compensation Nominal Insurer (Defendant/ Cross-Claimant)
Mirvale Pty Lid (Cross-Defendant)

Representation:

Proceedings 2022/00044665

Counsel:
V Jurisich (Plaintiff)
R Perla (Defendant/Cross-Claimant)
M Twemlow (Cross-Defendant)

Solicitors:
Frisina Lawyers (Plaintiff)
Wotton Kearney (Defendant /Cross-Claimant)
Lee Legal Group (Cross-Defendant)

Proceedings 2023/00205331

Counsel:
V Jurisich (Plaintiff)
M Twemlow (Defendant/ Cross-Claimant)
R Perla (Cross-Defendant)

Solicitors:
Frisina Lawyers (Plaintiff)
Lee Legal Group (Defendant/ Cross-Claimaint)
Wotton Kearney (Cross-Defendant)

File Number(s):

2022/00044665; 2023/00205331

JUDGMENT – duty – ex tempore (revised)

1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (‘the Act’). The approval is necessary because the plaintiff Yahya Muchref, is presently 47 years of age and is under a legal incapacity because of injuries he suffered on 7 March 2019.

Background

2. The plaintiff was born on 5 August 1978 in Lebanon. His brother Youssef Mouchrif is the tutor in the proceedings.

3. On 14 February 2018, the plaintiff commenced employment as a painter with OMB Painting Group Pty Ltd, the first defendant in the proceedings. The employment was on a part-time basis, working 1-2 days a week only, and earning approximately $164 to $304 net per week.

4. On 6 March 2019, the first defendant sent the plaintiff to work for Mirvale Pty Limited, the second defendant in the proceedings, who was the head contractor of building work at a site in Caringbah South in Sydney (“the site”). The plaintiff was required to perform painting duties.

5. On 7 March 2019, the plaintiff was painting the walls of a two-storey building at the site. He fell 3 metres from the first floor through an unprotected void to the ground floor. As a result, the plaintiff suffered significant physical injuries to his head, brain, back, vision and hearing. He also suffered psychiatric injury. He has been unable to return to any form of employment since the accident.

6. Between his arrival in Australia in 2013, and his commencement of employment with the first defendant in 2018, the plaintiff worked only sporadically, and for only one or two days per week. For most of that time he was unemployed and was in receipt of Centrelink benefits. The plaintiff did not intend to work more than one or two days per week because of a pre-existing psychiatric condition.

7. The plaintiff commenced proceedings against both defendants in the District Court. As the first defendant was uninsured, separate proceedings were commenced against the Workers’ Compensation Nominal Insurer, as the relevant defendant so far as his claim against his employer was concerned. The second defendant is sued as occupier in both sets of proceedings, which are materially identical in substance. The defendants have issued cross claims.

8. The plaintiff has received substantial payments pursuant to the Workers’ Compensation Act 1987 (NSW) (“WCA”). Modified common law damages are to be assessed pursuant to the WCA as against the first defendant. As against the second defendant, damages are to be assessed pursuant to the Civil Liability Act 2002 (NSW).

9. After several attempts at mediation, the matter has settled subject to Court approval.

10. In support of the application for approval, I received the following:

1. The affidavit of the plaintiff’s tutor Youssef Mouchrif sworn on 7 August 2025 and 4 September 2025;

2. An affidavit of Anthony Frisina, the plaintiff’s solicitor, sworn on 7 August 2025 with thirty annexures, the greatest proportion of which are reports from medical and allied health experts served in the proceedings;

3. An affidavit of the plaintiff sworn on 4 September 2025; and

4. A confidential advice of Mr Vaughan Jurisich of counsel dated 25 July 2025.

Relevant principles

11. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

12. It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 (“Scandolera”) at [27].

13. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether the plaintiff might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on the plaintiff if the litigation were to continue”: Scandolera at [29].

14. The tutor must also assent to the compromise, which has occurred here.

Consideration

15. Liability remains in dispute with respect to both defendants, who have alleged contributory negligence on behalf of the plaintiff. There is no real dispute about the injuries suffered by the plaintiff and that he will not return to work. There are disputes about the plaintiff’s future needs.

16. The real question on the approval is whether or not the settlement amount is adequate in all of the circumstances.

17. I have carefully considered the medical material and the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters and opinions expressed by the plaintiff, Mr Frisina and Mr Youssef Mouchrif in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

18. In my view, there is a risk that the plaintiff will receive an amount in damages that is less than the settlement amount should the matter proceed to hearing.

19. Bearing in mind all the material that has been placed before me, in my opinion the proposed settlement is beneficial to, and in the best interests of, the plaintiff.

20. In my view, on the evidence before me it is in the plaintiff’s best interests for the settlement to go to the NSW Trustee and Guardian.

Orders

21. I make the following orders in proceedings 2022/00044665:-

1. I approve the settlement set out in the Consent Judgment pursuant to s 76(4) of the Act.

2. Judgment for the plaintiff in the sum set out in paragraph 1 of the Consent Judgment (the Judgment Sum).

3. The orders for costs pursuant to paragraphs 2, 2A, 3, 4 and 5.

4. I note paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16 and the agreements in paragraphs 17 and 18 of the Consent Judgment.

5. Pursuant to s 77(3) of the Act, the net Judgment sum after deductions referred to in paragraphs 6, 7, 8, 11 and 12 (if any) of the Consent Judgment, is to be paid by the first defendant into Court or directly to the NSW Trustee and Guardian to be held and applied for the maintenance and education or otherwise for the benefit of the plaintiff.

22. I make the following orders in proceedings 2023/00205331:-

1. I approve the settlement and order that the proceedings be discontinued pursuant to order 1 of the Consent Judgment.

2. Order each party to bear his or its costs of the proceedings.

3. Order that the First Amended Cross Claim filed on 6 March 2025 is dismissed with no order as to costs to the intent that the parties to the First Amended Cross Claim pay their own costs.

4. I note paragraph 5 and the agreement contained in paragraph 6 of the Consent Judgment.

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Amendments

22 September 2025 - Correcting error in catchwords

Decision last updated: 22 September 2025