| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NIKOLOVSKI -v- HOLLOWAY [2011] WADC 11 (S) CORAM : DAVIS DCJ HEARD : 12, 16 - 25 & 27 AUGUST 2010, DELIVERED : 28 JANUARY 2011 SUPPLEMENTARY
DECISION : 11 MARCH 2011 FILE NO/S : CIV 157 of 2006 BETWEEN : NIKOLA NIKOLOVSKI Plaintiff
AND
KERRY RAE HOLLOWAY
Defendant
Catchwords: Assessment of general damages - Slip rule - Amendment to judgment sum - Costs orders Legislation: Rules of the Supreme Court 1971, O 21 r 10
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Result: Judgment for the plaintiff amended to $19,327
Costs orders made by consent Representation: Counsel:
Plaintiff : Dr P R MacMillan
Defendant : Mr D M G Burton
Solicitors:
Plaintiff : S C Nigam & Co
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Monaco v Arnedo Pty Ltd (1994) 13 WAR 522
Nikolovski v Holloway [2011] WADC 11
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1 DAVIS DCJ: On 28 January 2011 I delivered my reasons for decision in this matter Nikolovski v Holloway [2011] WADC 11 ('my reasons'). I made an order that there be judgment for the plaintiff in the sum of $25,411 and made directions for the filing of affidavits and submissions on the question of costs.
2 In February 2011 the defendant filed a motion for orders amending the judgment pursuant to O 21 r 10 of the Rules of the Supreme Court 1971. An amendment to the judgment was sought as a result of two matters. 3 First, the parties drew to my attention that in the penultimate paragraph of my reasons [268] I had made an error of calculation, adding the amount I had allowed for past loss of superannuation twice, both in the figure for past loss of earnings and in the next figure for past loss of superannuation. The total award of the damages should have been the sum of $23,395, calculated as follows: Past loss of earnings $16,482.00
Past loss of superannuation $2,016.00
Interest on past loss of earnings and superannuation $4,068.00
Special damages $829.00
TOTAL : $23,395.00 4 Secondly, Mr Nikolovski had received, on a without prejudice basis, an advance payment for past loss of earnings. Details of this were set out in an affidavit of Benjamin David Hansberry sworn 11 February 2011. Accordingly, because of the advance made to Mr Nikolovski, he was not entitled to any allowance for interest on past loss of earnings and superannuation. The parties agreed that judgment for the plaintiff should accordingly be reduced by the amount I had allowed for interest, $4,068. The amount for which judgment should be entered for the plaintiff accordingly should be reduced to a sum of $19,327. 5 I am satisfied that the judgment sum awarded to Mr Nikolovski should be corrected to avoid injustice: Monaco v Arnedo Pty Ltd (1994) 13 WAR 522, 524. 6 The parties have agreed costs. (Page 4)
7 In accordance with a minute of consent orders signed by the solicitors for both parties dated 8 February 2011, I amend the judgment of 28 January 2011 and make orders for costs as follows: 1. Judgment be entered for the plaintiff against the defendant for the sum of $19,327. 2. The defendant do pay the plaintiff's costs up to 6 May 2009, such costs to be taxed. 3. The plaintiff do pay the defendant's costs from 7 May 2009, such costs to be taxed.
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