Oroz v Hansen Yuncken Pty Ltd - [2006] NSWSC 737

CITATION: Oroz v Hansen Yuncken Pty Ltd & Anor [2006] NSWSC 737

HEARING DATE(S): 7 July 2005; 29 August 2005

JUDGMENT DATE :
28 April 2006

JUDGMENT OF: Simpson J

DECISION: Parties to notify when final orders reflecting all determinations in this matter have been prepared.

CATCHWORDS: verdict and judgment against each defendant - damages for personal injury - quantification of damages - obligation of counsel not to attack integrity or bona fides of colleagues unless sufficient basis can be shown to exist - effect of Gordian Runoff Ltd v Heyday Groups Pty Ltd [2005] NSWCA 29 - tax deductibility of fund management costs - plaintiff's entitlement to costs of fund management - re-litigating matters already the subject of judgment - adjustment under s151Z Workers Compensation Act 1987 - fund management damages as a head of damage - workers' compensation payments

LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1946 s5(1)
Protected Estates Act 1983
Protected Estates Regulation 2003 4(1)(g)
Workers Compensation Act 1987 s151Z

CASES CITED: GIO v Rosniak (1992) 27 NSWLR 665
Gordian Runoff Ltd v Heyday Group Pty Ltd [2005] NSWCA 29
Multiplex Constructions Pty Limited v Irving & Ors; Fugen Holdings Pty Limited v Irving & Ors [2004] NSWCA 346
Todorivic v Waller [1981] HCA 72; 150 CLR 402
Oroz v Hansen Yuncken Pty Ltd & Anor [2004] NSWSC 1288
Oroz v Hansen Yuncken Pty Ltd & Anor [2005] NSWSC 203
Oxley County Council v MacDonald & Other [1999] NSWCA 126

PARTIES: Ilija Oroz - Plaintiff
Hansen Yuncken Pty Ltd - 1st Defendant
Auburn United Formwork Pty Ltd - 2nd Defendant

FILE NUMBER(S): SC 20905/01

COUNSEL: D Kennedy SC/F Fletcher - Plaintiff
J de Greenlaw - 1st Defendant
HG Shore SC - 2nd Defendant

SOLICITORS: Taylor & Scott - Plaintiff
McCulloch & Buggy - 1st Defendant
Bartier Perry - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Friday 28 April 2006

20905/01 Ilija Oroz v Hansen Yuncken Pty Ltd & Anor

JUDGMENT

1 HER HONOUR: In this matter I delivered my original judgment on 1 October 2004 (Oroz v Hansen Yuncken Pty Ltd & Anor [2004] NSWSC 1288) (“the primary judgment”). The matter was then listed, in what it is now obvious was an overabundance of optimism, on 1 December 2004, for finalisation of outstanding matters, including the updating of evidence going to calculation of some heads of damages.

2 On that date I was asked, on behalf of the second defendant, to “revisit” some of my findings in the primary judgment. Written submissions dated 30 November 2004 were presented. These went to the findings in respect of loss of earning capacity, and the allowance to be made for the plaintiff’s future care. These were all matters that had been the subject of the primary judgment. It seems that the first of these was uncontroversial. I had, apparently, mistakenly undertaken such calculations as I did on the basis of gross wage figures rather than net wage…

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 Oroz v Hansen Yuncken Pty Ltd

Details

AGLC: Oroz v Hansen Yuncken Pty Ltd [2006] NSWSC 737
Case: [2006] NSWSC 737
Decision Date: 28 April 2006

CaseChat Overview and Summary

The case of Oroz v Hansen Yuncken Pty Ltd involved a dispute between the plaintiff, Oroz, and the defendants, Hansen Yuncken Pty Ltd. The plaintiff sought damages for personal injuries sustained during his employment. The matter was heard in the Supreme Court of New South Wales. The central legal issues that the court had to decide related to the quantification of damages, the obligation of counsel to maintain professional integrity, the tax deductibility of fund management costs, the plaintiff's entitlement to costs of fund management, and the adjustment of damages under the Workers Compensation Act 1987.

The court addressed the obligation of counsel not to attack the integrity or bona fides of colleagues unless there is sufficient basis for such an attack. This was considered in light of the decision in Gordian Runoff Ltd v Heyday Groups Pty Ltd. The court emphasised that counsel must act with professionalism and refrain from making unsubstantiated allegations against other legal professionals. Regarding the tax deductibility of fund management costs, the court examined whether these costs were properly included in the damages awarded to the plaintiff. Additionally, the court considered the plaintiff's entitlement to recover the costs of fund management, ensuring that these costs were reasonable and necessary. The court also noted the importance of not re-litigating matters that had already been the subject of judgment. Finally, the court examined the adjustment of damages under section 151Z of the Workers Compensation Act 1987, taking into account any workers' compensation payments that had been made to the plaintiff.

The court ruled that the defendants were liable for damages to the plaintiff for personal injury. It also confirmed that the fund management damages were a valid head of damage, subject to certain conditions. The court allowed the plaintiff to recover reasonable fund management costs and adjusted the damages accordingly. The court further held that the defendants were not entitled to costs for re-litigating matters already decided, and it emphasised the importance of maintaining professional integrity in legal proceedings.

Orders