McColl JA at 1; Campbell JA at 113; Sackville AJA at 243
DECISION:
(1) Grant leave to appeal (2) Direct a notice of appeal, in the form contained in the white book, be filed within seven days (3) Appeal allowed (4) Set aside the orders made in the District Court on 20 February 2009 in matter 4603 of 2005 (5) In lieu thereof, order that the Notice of Motion of each Respondent be dismissed with costs (6) Respondents to pay costs of the Appellant of the appeal, but to have a certificate under the Suitors Fund Act 1951 if qualified.
CATCHWORDS:
TORTS – the law of torts generally – joint or several tortfeasors – contribution – general – effect of settlement against one tortfeasor – legislation preventing double recovery – purpose and effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – undercompensation irrelevant for purposes of operation of s5(1)(b) – TORTS – the law of torts generally – general principles – meaning of “damages awarded” in s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946– “damages awarded” extends only to circumstances where the court has assessed the quantum of those damages in the context of s5(1)(b) – TORTS – negligence – apportionment of responsibility and damages – principles and mode of apportionment – DAMAGES – measure and remoteness of damages in actions for tort – measure of damages – legislation limiting amount of damages available – effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – PROCEDURE – judgments and orders – effect of judgments – whether “damages awarded” extends to include judgments giving effect to settlement amongst parties for the purposes of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – meaning of “damage” – WORDS AND PHRASES – “damage” – “damages awarded”
[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
AGLC
Nau v Kemp & Associates [2010] NSWCA 164
Case
[2010] NSWCA 164
Decision Date
CaseChat Overview and Summary
The case of *Nau v Kemp & Associates* was heard in the Court of Appeal of New South Wales, with McColl and Campbell JJA and Sackville AJA presiding. The dispute concerned the application of section 5(1)(b) of the *Law Reform (Miscellaneous Provisions) Act 1946* (NSW) in circumstances where a plaintiff had settled with one tortfeasor and subsequently sought to recover further damages from another. The central issue was whether the settlement amount, agreed between the plaintiff and the first tortfeasor, constituted "damages awarded" for the purposes of section 5(1)(b), which prevents a plaintiff from recovering more than the total damages assessed.
The court was required to determine the meaning of "damages awarded" within section 5(1)(b) of the *Law Reform (Miscellaneous Provisions) Act 1946*. Specifically, it had to consider whether this phrase encompassed judgments that gave effect to a settlement between parties, or if it was limited to damages assessed by a court following a trial. The court also had to consider the purpose and effect of section 5(1)(b) in preventing double recovery, and whether the potential for under-compensation of the plaintiff was relevant to its operation.
The Court of Appeal held that "damages awarded" in section 5(1)(b) refers only to damages that have been assessed by a court. It reasoned that the purpose of the section is to prevent a plaintiff from recovering more than the total amount of damage assessed by the court, and that a settlement amount, not having been assessed by a court, does not fall within this definition. The court found that the District Court had erred in its interpretation of the section by treating the settlement amount as "damages awarded". Consequently, the appeal was allowed, the orders of the District Court were set aside, and the respondents' notices of motion were dismissed with costs.
Orders
Orders of the court
(1) Grant leave to appeal
(2) Direct a notice of appeal, in the form contained in the white book, be filed within seven days
(3) Appeal allowed
(4) Set aside the orders made in the District Court on 20 February 2009 in matter 4603 of 2005
(5) In lieu thereof, order that the Notice of Motion of each Respondent be dismissed with costs
(6) Respondents to pay costs of the Appellant of the appeal, but to have a certificate under the Suitors Fund Act 1951 if qualified.