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Nakos v Serdaris

Nakos v Serdaris

Case [2016] VSC 179 27 April 2016

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Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 04728

GREGORY NAKOS (by way of Litigation Guardian ANASTASIA NAKOS)	Plaintiff
v
GEORGE SERDARIS	Defendant

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2016
DATE OF JUDGMENT:	27 April 2016
CASE MAY BE CITED AS:	Nakos v Serdaris
MEDIUM NEUTRAL CITATION:	[2016] VSC 179

COSTS — Supreme Court (General Civil Procedure) Rules 2015 r 26.08(3) — Offer of compromise made — The Court’s discretion to ‘otherwise order’.

Transport Accident Act 1986 ss 46A, 47, 49, 93(3), 93(11)(b)(i) — Impairment — Whether plaintiff required to pay back the impairment benefit.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Mighell QC with Ms J. Frederico of Counsel	Slater and Gordon
For the Defendant	Mr P. Elliott QC with Ms A. Wood of Counsel	Transport Accident Commission

HER HONOUR:

The following reasons deal with two applications. The first application is in relation to costs. The defendant seeks an order pursuant to r 26.08(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) that the defendant pay the plaintiff’s costs up to 18 December 2015, and thereafter the plaintiff pay the defendant’s costs. The plaintiff seeks a finding that the litigation guardian’s refusal of the offer of compromise (‘the offer’) was not unreasonable and urges the Court to exercise its discretion to refrain from enforcing the costs prescribed by r 26.08 of the Rules, and further, that the defendant pay the plaintiff’s costs. The second application concerns the plaintiff seeking an order that the jury verdict should not be reduced by the amount of the impairment benefit paid to the plaintiff in the sum of $35,180 pursuant to s 47 of the Transport Accident Act 1986 (‘TA Act’).

The plaintiff relies on the affidavits of:

(1)Anastasia Nakos, sworn 16 March 2016;
(2)Craig Anthony Lynch, solicitor, sworn 18 March 2016.

For completeness, the Court heard submissions in relation to the admissibility of Exhibit CAL2 to the affidavit of Craig Lynch. Following submissions, I determined that Exhibit CAL2 was not admissible.

Both parties relied on written submissions.

Background

On 24 October 2014, the plaintiff issued a proceeding by writ seeking damages for personal injuries following a transport accident on 28 October 2008 (‘the proceeding’).

On or about 5 November 2008, the plaintiff lodged a claim with the Transport Accident Commission (‘TAC’). On 26 August 2009, the plaintiff made an impairment benefit claim for compensation pursuant to s 47 of the TA Act. On 24 July 2014, the TAC advised the plaintiff that his level of impairment had been determined and that such level of impairment was assessed to be 28 percent. This entitled the plaintiff to a lump sum payment of $35,180.

On 16 December 2015, the parties attended a court-ordered mediation. Junior counsel and instructing solicitor appeared on behalf of the plaintiff. On 17 December 2015, the defendant served an offer of compromise (‘the offer’) on the plaintiff’s…

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 Nakos v Serdaris

Details

AGLC: Nakos v Serdaris [2016] VSC 179
Case: [2016] VSC 179
Decision Date: 27 April 2016

CaseChat Overview and Summary

The case of Nakos v Serdaris involved a dispute between the plaintiff, Nakos, and the defendant, Serdaris, under the Transport Accident Act 1986. The primary issue was whether the plaintiff, Nakos, was required to repay the impairment benefit received under the Act. The case was heard in the Supreme Court, where the court had to determine the correct interpretation of the relevant sections of the Act, specifically sections 46A, 47, 49, 93(3), and 93(11)(b)(i), in the context of the plaintiff's recovery of damages and settlement of the case.

The court considered the legal issues surrounding the statutory provisions and the precedent set by previous cases. Key points included the interpretation of impairment benefits and the implications of a compromise offer made under the Supreme Court (General Civil Procedure) Rules 2015 rule 26.08(3). The court needed to determine the extent to which the plaintiff was required to repay the impairment benefit upon recovery of damages and how this repayment obligation interacted with the rules governing offers of compromise.

In its reasoning, the court examined the legislative intent behind the impairment benefit provisions and the context in which they were applied. The court found that the plaintiff was not required to repay the impairment benefit upon recovery of damages, as this would contravene the purpose of the benefit, which is to compensate for the impact of the injury. The court also noted that the plaintiff's offer of compromise did not affect the outcome, as the statutory provisions and legislative intent clearly favoured the plaintiff's position. The court exercised its discretion under rule 26.08(3) to ensure a just outcome in line with the principles of fairness and the statutory framework.

The final orders of the court were that the plaintiff, Nakos, was not required to repay the impairment benefit received under the Transport Accident Act 1986. The court's decision was based on the interpretation of the relevant statutory provisions and the legislative intent behind the impairment benefit provisions. The court also noted that the offer of compromise did not alter the outcome of the case, reaffirming the plaintiff's position.

Orders