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Najdovski v Crnojlovic (No 2)

Najdovski v Crnojlovic (No 2)

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New South Wales

Court of Appeal

CITATION: NAJDOVSKI v CRNOJLOVIC (NO. 2) [2008] NSWCA 281

HEARING DATE(S): 29 April 2008

JUDGMENT DATE:
30 October 2008

JUDGMENT OF: Allsop P at 1; Basten JA at 2; Windeyer J at 39

DECISION:
In addition to orders (1) and (3) made on 1 August 2008, the Court orders:
(1A) In lieu of the judgment given on 9 June 2006 in the District Court:
(a) give judgment for the appellant in the amount of $842,493;
(b) direct that the judgment take effect from the date of judgment at trial, namely 9 June 2006.

CATCHWORDS: INTEREST – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – whether judgment for amount exceeding offer by more than 20% demonstrates unreasonableness of offer – whether offer reasonable having regard to expert evidence about extent of plaintiff’s injuries – whether offer took into account chance that plaintiff would have been found contributorily negligent – whether claim for pre-judgment interest at trial – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - INTEREST – post-judgment interest – whether post-judgment interest awarded for amount of judgment outstanding because of increased award on appeal – Civil Procedure Act 2005 (NSW) s 101 - MOTOR ACCIDENTS – damages – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - STATUTORY INTERPRETATION – purpose of including interest in award of damages and constraining award of interest – comparison of rules relating to awarding costs, where reasonable offer made, but not accepted, and awarding interest under s 137(4) – legislative history – Motor Accidents Act 1988 (NSW) s 73 – Motor Accidents Compensation Act 1999 (NSW) 137(4) - WORDS & PHRASES – “appropriate” – “reasonable” – “unreasonable”

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 100, 101
District Court Act 1973 (NSW), s 83A
Motor Accidents Act 1988 (NSW), s 73
Motor Accidents (Amendment) Act 1994 (NSW), Schedule 1(1)
Motor Accidents Compensation Act 1999 (NSW), ss 83, 128, 137
Supreme Court Act 1970 (NSW), s 75A
Uniform Civil Procedure Rules 2005 (NSW), rr 36.4(3), 36.16

CATEGORY: Consequential orders

CASES CITED: Allianz Australian Insurance Ltd v Crazzi [2006] NSWSC 1090; 68 NSWLR 266
Cochrane v Hannaford [1999] NSWCA 371; 30 MVR 55
Fitzgerald v Dansey [2001] NSWCA 339; 35 MVR 86
Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Rep 81-951
Kendirjian v Ayoub [2008] NSWCA 194
Najdovski v Crnojlovic [2008] NSWCA 175
Nicol v Allyacht Spars Pty Ltd [No. 2] [1988] HCA 48;

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.

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Details

Case: [2008] NSWCA 281
Decision Date: 30 October 2008

CaseChat Overview and Summary

The appeal concerned the entitlement of the plaintiff, Mr Najdovski, to pre-judgment interest on damages awarded in a motor accident claim, and the court's power to award post-judgment interest. The primary dispute revolved around the interplay between section 100 of the *Civil Procedure Act 2005* (NSW) and section 137 of the *Motor Accidents Compensation Act 1999* (NSW), and whether the latter statute limited or replaced the plaintiff's general entitlement to pre-judgment interest. The court also considered whether the plaintiff's offer to settle was unreasonable, impacting the award of interest, and whether post-judgment interest should be awarded on an increased judgment amount arising from the appeal.

The legal issues before the court were: firstly, whether section 137 of the *Motor Accidents Compensation Act 1999* (NSW) operated to limit or extinguish the plaintiff's entitlement to pre-judgment interest under section 100 of the *Civil Procedure Act 2005* (NSW) in the context of a motor accident claim; secondly, whether the plaintiff's offer to settle was unreasonable, thereby affecting the award of pre-judgment interest, by considering the extent of the plaintiff's injuries, expert evidence, and the possibility of contributory negligence; and thirdly, whether post-judgment interest should be awarded on the increased amount of the judgment due to the appeal.

The court reasoned that section 137 of the *Motor Accidents Compensation Act 1999* (NSW) was intended to provide a specific regime for pre-judgment interest in motor accident cases, distinct from the general provisions of the *Civil Procedure Act 2005* (NSW). It held that the language of section 137(4) indicated a discretion to award interest, but this discretion was constrained by the reasonableness of the offer made by the defendant. The court found that the offer made by the defendant was not unreasonable, as it had taken into account the expert evidence regarding the plaintiff's injuries and the potential for contributory negligence. Consequently, the court determined that the plaintiff was entitled to pre-judgment interest, but the amount was to be calculated in accordance with the provisions of section 137 of the *Motor Accidents Compensation Act 1999* (NSW). The court also ordered that post-judgment interest was to be awarded on the outstanding amount of the judgment.

Orders

Orders of the court

In addition to orders (1) and (3) made on 1 August 2008, the Court orders: (1A) In lieu of the judgment given on 9 June 2006 in the District Court:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	NAJDOVSKI v CRNOJLOVIC (NO. 2) [2008] NSWCA 281
HEARING DATE(S):	29 April 2008
JUDGMENT DATE:	30 October 2008
JUDGMENT OF:	Allsop P at 1; Basten JA at 2; Windeyer J at 39
DECISION:	In addition to orders (1) and (3) made on 1 August 2008, the Court orders: (1A) In lieu of the judgment given on 9 June 2006 in the District Court: (a) give judgment for the appellant in the amount of $842,493; (b) direct that the judgment take effect from the date of judgment at trial, namely 9 June 2006.

CATCHWORDS:	INTEREST – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – whether judgment for amount exceeding offer by more than 20% demonstrates unreasonableness of offer – whether offer reasonable having regard to expert evidence about extent of plaintiff’s injuries – whether offer took into account chance that plaintiff would have been found contributorily negligent – whether claim for pre-judgment interest at trial – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - INTEREST – post-judgment interest – whether post-judgment interest awarded for amount of judgment outstanding because of increased award on appeal – Civil Procedure Act 2005 (NSW) s 101 - MOTOR ACCIDENTS – damages – pre-judgment interest – whether s 137 of the Motor Accidents Compensation Act 1999 (NSW) limits or replaces entitlement of plaintiff to interest on damages, under s 100 of the Civil Procedure Act 2005 (NSW), in relation to motor accidents – Civil Procedure Act 2005 (NSW) s 100 – Motor Accidents Compensation Act 1999 (NSW) s 137 - STATUTORY INTERPRETATION – purpose of including interest in award of damages and constraining award of interest – comparison of rules relating to awarding costs, where reasonable offer made, but not accepted, and awarding interest under s 137(4) – legislative history – Motor Accidents Act 1988 (NSW) s 73 – Motor Accidents Compensation Act 1999 (NSW) 137(4) - WORDS & PHRASES – “appropriate” – “reasonable” – “unreasonable”
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 100, 101 District Court Act 1973 (NSW), s 83A Motor Accidents Act 1988 (NSW), s 73 Motor Accidents (Amendment) Act 1994 (NSW), Schedule 1(1) Motor Accidents Compensation Act 1999 (NSW), ss 83, 128, 137 Supreme Court Act 1970 (NSW), s 75A Uniform Civil Procedure Rules 2005 (NSW), rr 36.4(3), 36.16
CATEGORY:	Consequential orders
CASES CITED:	Allianz Australian Insurance Ltd v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 Cochrane v Hannaford [1999] NSWCA 371; 30 MVR 55 Fitzgerald v Dansey [2001] NSWCA 339; 35 MVR 86 Harrison v Melhem [2008] NSWCA 67; (2008) Aust Torts Rep 81-951 Kendirjian v Ayoub [2008] NSWCA 194 Najdovski v Crnojlovic [2008] NSWCA 175 Nicol v Allyacht Spars Pty Ltd [No. 2] [1988] HCA 48;