Najjarine v Hakanson - [2009] NSWCA 187

New South Wales

Court of Appeal

CITATION: Najjarine v Hakanson [2009] NSWCA 187

HEARING DATE(S): 29 May 2009

JUDGMENT DATE:
8 July 2009

JUDGMENT OF: Hodgson JA at 1; Macfarlan JA at 27; Young JA at 28

DECISION: (1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days.
(2) Appeal allowed.
(3) Costs order below set aside, and in lieu thereof order that the applicant pay the respondent’s costs on a party and party basis, subject to the limits prescribed by cl 9 and Schedule 1 of the Motor Accidents Compensation Regulation (No 2) 1999.
(4) Applicant to pay the respondent’s costs of the application and the appeal.

CATCHWORDS: PROCEDURE – Costs – Limits to costs under the Motor Accidents Compensation Act 1999 and the Motor Accidents Compensation Regulation (No 2) 1999 – Whether applicable to party and party costs.

LEGISLATION CITED: Motor Accidents Compensation Act 1999 ss.92, 148, 149, 150, 151, 153
Motor Accidents Compensation Regulation (No 2) 1999, clauses 8, 9, 1, Schedule 1

CATEGORY: Procedural and other rulings

CASES CITED: CSR Limited v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725
Dyktynski v BHP Titanium Minerals Pty Limited [2004] NSWCA 154; (2004) 60 NSWLR 203
Lee v Yang [2006] NSWCA 214
Nominal Defendant v Gabriel [2007] NSWCA 52; (2007 71 NSWLR 150
NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668
San v Rumble (No 2) [2007] NSWCA 259
State of New South Wales v Bujdoso [2007] NSWCA 44; (2007) 69 NSWLR 302
Tarry v Pryce (No 2) (1987) 88 FLR 270
Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474

PARTIES: Omar NAJJARINE (appellant)
Keith HAKANSON (respondent)

FILE NUMBER(S): CA 40374/08

COUNSEL: J TUNBULL (appellant)
P R STERNBERG (respondent)

SOLICITORS: Ferguson Lawyers (appellant)
Elias Gates & Associates (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 69/06

LOWER COURT JUDICIAL OFFICER: Kearns DCJ

LOWER COURT DATE OF DECISION: 20 August 2008

CA 40374/08
DC 69/06

HODGSON JA
MACFARLAN JA
YOUNG JA
8 JULY 2009

Omar NAJJARINE v Keith HAKANSON

Judgment

: On 20 August 2008, Kearns DCJ, having previously awarded damages to the plaintiff (the respondent in this Court) for personal injury arising out of a motor vehicle accident, made the following order:

I order the defendant to pay the plaintiff’s costs after 21 September 2005 on a party and party basis, including court fees prescribed under s 154.

2 From that order the defendant (the applicant in this Court) seeks leave to appeal. The application for leave to appeal has been heard on the basis that, if leave is granted, the appeal will be dealt with without further argument.

Statutory provisions

3 In order to understand the issues, it is necessary to have regard to relevant statutory provisions.

4 The Motor Accidents Compensation Act 1999 (the Act) contains detailed provisions concerning the making and resolution of claims for damages for personal injury arising out of motor vehicle accidents. The scheme of this Act…

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 Najjarine v Hakanson

Details

AGLC: Najjarine v Hakanson [2009] NSWCA 187
Case: [2009] NSWCA 187
Decision Date: 8 July 2009

CaseChat Overview and Summary

The case of *Najjarine v Hakanson* concerned a dispute over the application of cost limits under the *Motor Accidents Compensation Act 1999* (NSW) and the *Motor Accidents Compensation Regulation (No 2) 1999* (NSW) to party and party costs. The proceedings were heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the cost limitations stipulated in the *Motor Accidents Compensation Regulation (No 2) 1999* applied to party and party costs awarded in proceedings under the *Motor Accidents Compensation Act 1999*.

The Court of Appeal determined that the cost limitations were indeed applicable to party and party costs. The court reasoned that the legislative framework intended to cap the recoverable costs in motor accident claims, and this intention extended to costs awarded on a party and party basis. Consequently, the appeal was allowed, the original costs order was set aside, and a new order was made specifying that the applicant pay the respondent's costs on a party and party basis, subject to the limits prescribed by the relevant regulation. The applicant was also ordered to pay the respondent's costs for the application for leave to appeal and the appeal itself.

Orders

Orders of the court

(1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days. (2) Appeal allowed. (3) Costs order below set aside, and in lieu thereof order that the applicant pay the respondent's costs on a party and party basis, subject to the limits prescribed by cl 9 and Schedule 1 of the Motor Accidents Compensation Regulation (No 2) 1999. (4) Applicant to pay the respondent's costs of the application and the appeal.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Najjarine v Hakanson [2009] NSWCA 187
HEARING DATE(S):	29 May 2009
JUDGMENT DATE:	8 July 2009
JUDGMENT OF:	Hodgson JA at 1; Macfarlan JA at 27; Young JA at 28
DECISION:	(1) Leave to appeal granted, Notice of Appeal to be filed within fourteen days. (2) Appeal allowed. (3) Costs order below set aside, and in lieu thereof order that the applicant pay the respondent’s costs on a party and party basis, subject to the limits prescribed by cl 9 and Schedule 1 of the Motor Accidents Compensation Regulation (No 2) 1999. (4) Applicant to pay the respondent’s costs of the application and the appeal.
CATCHWORDS:	PROCEDURE – Costs – Limits to costs under the Motor Accidents Compensation Act 1999 and the Motor Accidents Compensation Regulation (No 2) 1999 – Whether applicable to party and party costs.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 ss.92, 148, 149, 150, 151, 153 Motor Accidents Compensation Regulation (No 2) 1999, clauses 8, 9, 1, Schedule 1
CATEGORY:	Procedural and other rulings
CASES CITED:	CSR Limited v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 Dyktynski v BHP Titanium Minerals Pty Limited [2004] NSWCA 154; (2004) 60 NSWLR 203 Lee v Yang [2006] NSWCA 214 Nominal Defendant v Gabriel [2007] NSWCA 52; (2007 71 NSWLR 150 NSW Insurance Ministerial Corporation v Willis (1995) 35 NSWLR 668 San v Rumble (No 2) [2007] NSWCA 259 State of New South Wales v Bujdoso [2007] NSWCA 44; (2007) 69 NSWLR 302 Tarry v Pryce (No 2) (1987) 88 FLR 270 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474
PARTIES:	Omar NAJJARINE (appellant) Keith HAKANSON (respondent)
FILE NUMBER(S):	CA 40374/08
COUNSEL:	J TUNBULL (appellant) P R STERNBERG (respondent)
SOLICITORS:	Ferguson Lawyers (appellant) Elias Gates & Associates (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	69/06
LOWER COURT JUDICIAL OFFICER:	Kearns DCJ
LOWER COURT DATE OF DECISION:	20 August 2008