Peak v Dunleavy (No 2)

[2008] NSWDC 240

CITATION:	Peak v Dunleavy (No 2) [2008] NSWDC 240
HEARING DATE(S):	24 October 2008
JUDGMENT DATE:	7 November 2008
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. I assess future funds management charges in the sum of $727,035. 2. I enter a judgment in favour of the Plaintiff in the sum of $3,977,035. 3. I order the Defendant to pay the Plaintiff’s costs on the ordinary basis up to 10 July 2008 and on an indemnity basis from 11 July 2008
CATCHWORDS:	Funds management charges – added to verdict monies for fund management costs likely to be incurred by the Plaintiff over her remaining lifetime - Costs – Plaintiff’s costs of trial awarded on an indemnity basis
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 r 42.14
CASES CITED:	Commonwealth of Australia v Gretton [2008] NSWCA 117 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Morgan v Johnson (1998) 44 NSWLR 578 South Eastern Area Health Service & Anor v King [2006] NSWCA 2 Vale v Eggins (No 2) [2007] NSWCA 12 Willets v Futcher (2005) 221 CLR 627
PARTIES:	Rachelle Suzanne Peak by her Tutor Doreen Peak (Plaintiff) Leonie Dunleavy (Defendant)
FILE NUMBER(S):	2280 of 2006
COUNSEL:	Mr RS McIlwaine SC and Mr CP Locke (Plaintiff) Mr SG Campbell SC and Mr SE McCarthy (Defendant)
SOLICITORS:	Velleley & Associates (Plaintiff) McLachlan Chilton (Defendants)

JUDGMENT

Introduction

1. Consequent upon the findings published in this matter on 10 October 2008, Peak -v- Dunleavy (No 1) [2008] NSWDC 232, as previously foreshadowed, the Plaintiff has made an application for damages to be assessed for future funds management charges. The Plaintiff has also made an application for indemnity costs.

Background

2. During the course of the trial the Plaintiff’s entitlement to damages was agreed in the sum of $5,000,000. After apportionment for contributory negligence, which I assessed at 35%, this resulted in a verdict for the Plaintiff in the sum of $3,250,000.

3. On 24 October 2008, after noting corrections to the judgment under the Slip Rule, which had no bearing on the issues that now arise for determination, further evidence and argument was received on the issue of the Plaintiff’s entitlement to damages for funds management charges and her claimed entitlement to an order for indemnity costs.

Issues for determination

4. The issues that now arise for determination are:

(a) What underlying assumption should be made concerning the Plaintiff’s probable survival as a basis for the assessment of damages for the likely cost of future funds management;

(b) What sum should be allowed for the cost of future funds management;

(c) Is the Plaintiff entitled to an order that the Defendant pay her costs on an indemnity basis and if so, from what date should such an order operate?

5. The parties prepared written submissions on these issues and these were supplemented by oral submissions.

Probable survival of the Plaintiff

6. Mr McIlwaine SC submits…