CITATION: Multiplex Constructions Pty Limited v Irving & 2 Ors; Fugen Holdings Pty Limited v Irving & 2 Ors (No 2) [2005] NSWCA 1
HEARING DATE(S): On written submissions
JUDGMENT DATE:
4 March 2005JUDGMENT OF: Santow JA at 1; Ipp JA at 2; Pearlman AJA at 36
DECISION: (1) The first and second appeals by Multiplex and Fugen are allowed as against Mr Irving (2) The first and second appeals by Multiplex and Fugen are dismissed as against Royal (3) The orders made by the trial judge in relation to Mr Irving's future economic loss and superannuation on future economic loss be varied as follows: (a) In lieu of the assessment of future economic loss, substitute the sum of $163,075.90 against Fugen and the sum of $198,214 against Multiplex (b) In lieu of the assessment of superannuation on future economic loss, substitute the sum of $17,612.20 against Fugen and $21,407.11 against Multiplex (4) In lieu of order (1) made by the trial judge, judgment be entered for Mr Irving against Multiplex in the sum of $434,735.11 (5) In lieu of Order (2) made by the trial judge, judgment be entered for Multiplex against Fugen in the sum of $434,735.11 (6) Mr Irving to pay Multiplex's costs in the first appeal insofar as those costs relate to grounds 1 to 4 stated in the Notice of Appeal With Appointment dated 4 November 2003 in the first appeal (7) Mr Irving to pay Fugen's costs in the second appeal insofar as those costs relate to grounds 1 to 3 stated in the Notice of Appeal With Appointment dated 24 November 2003 in the second appeal (8) Multiplex to pay Royal's costs of the first appeal and Fugen to pay Royal's costs of the second appeal.
CATCHWORDS: COURTS - Discretion to allow a new argument to be raised after judgment is delivered but before formal orders have been entered - Policy involving finality of litigation precludes raising the argument. D
LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c)
Workers Copensation Act 1987 (NSW), s 151E
Motor Accidents Act 1988, s 3D
Motor Accidents Compensation Act 1999, s 5ACASES CITED: Auto Desk Inc v Dyason (No 2) (1993) 176 CLR 300
Gravgaard v Aldridge and Brownlee, Times, 2 December 2004
Nigel Watts Fashion Agencies Pty Limited v GIO General Limited (1995) 8 ANZ Insurance Cases 61-235
Noga v Abacha (2001) 3 All ER 513
Robinson v Fernsby [2003] W.T.L.R. 529
Smits v Buckworth (No 2) (NSWSC, 14 November 1997, unreported)
Stewart v Engel (2000) 3 All ER 518
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672PARTIES: CA 40669/03
Multiplex Constructions Pty Limited (Appellant)
Stuart Irving (First Respondent)
Fugen Holdings Pty Limited (Second Respondent)
Royal & Sun Alliance Insurance Australia Limited (Third Respondent)
CA 40732/03
Fugen Holdings Pty Limited (Appellant)
Stuart Irving (First Respondent)
Multiplex Constructions Pty Limited (Second Respondent)
Royal & Sun Alliance Insurance Australia Limited…
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- AGLC
- Multiplex Constructions Pty Ltd v Irving [2005] NSWCA 1
- Case
- [2005] NSWCA 1
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether it should permit Multiplex and Fugen to raise a new argument concerning the calculation of future economic loss after the trial judge had delivered judgment but before formal orders were entered. The court also had to determine the correct assessment of future economic loss and superannuation on future economic loss.
The Court of Appeal held that the policy of finality of litigation generally precluded the introduction of new arguments at such a late stage, particularly when the argument could have been raised at trial. The court therefore dismissed the appeals as against Royal. However, the court allowed the appeals as against Mr Irving, varying the trial judge's orders by substituting specific sums for future economic loss and superannuation on future economic loss. The court also entered judgment in favour of Mr Irving against Multiplex and in favour of Multiplex against Fugen for a specified amount, and made orders regarding the costs of the appeals.
Orders
Orders of the court
(1) The first and second appeals by Multiplex and Fugen are allowed as against Mr Irving (2) The first and second appeals by Multiplex and Fugen are dismissed as against Royal (3) The orders made by the trial judge in relation to Mr Irving's future economic loss and superannuation on future economic loss be varied as follows: (a) In lieu of the assessment of future economic loss, substitute the sum of $163,075.90 against Fugen and the sum of $198,214 against Multiplex (b) In lieu of the assessment of superannuation on future economic loss, substitute the sum of $17,612.20 against Fugen and $21,407.11 against Multiplex (4) In lieu of order (1) made by the trial judge, judgment be entered for Mr Irving against Multiplex in the sum of $434,735.11 (5) In lieu of Order (2) made by the trial judge, judgment be entered for Multiplex against Fugen in the sum of $434,735.11 (6) Mr Irving to pay Multiplex's costs in the first appeal insofar as those costs relate to grounds 1 to 4 stated in the Notice of Appeal With Appointment dated 4 November 2003 in the first appeal (7) Mr Irving to pay Fugen's costs in the second appeal insofar as those costs relate to grounds 1 to 3 stated in the Notice of Appeal With Appointment dated 24 November 2003 in the second appeal (8) Multiplex to pay Royal's costs of the first appeal and Fugen to pay Royal's costs of the second appeal.
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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