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Permanent Custodians Ltd v King

Permanent Custodians Ltd v King

Case [2010] NSWSC 509 25 May 2010

Limitation Periods

Proportionate Liability

Compensatory Damages

Costs

Civil Litigation & Procedure

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CITATION: Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 509

HEARING DATE(S): 6 May 2010

JUDGMENT DATE :
25 May 2010

JUDGMENT OF: Schmidt J

DECISION: 1. The Fourth Cross–defendant pay Permanent Custodians Limited’s costs of its motion filed on 8 September 2009.
2. The Cross Claimant pay the Fourth Cross–defendant’s costs thrown away by reason of the case proceeding at trial on the issue of damages on the basis of the terms of Order 6 of the Terms of Settlement made by the Court on 20 February 2008 (which was subsequently rectified).
3. The Cross Claimant pay the Fourth Cross–defendant’s costs of his motion filed on 31 July 2009.

CATCHWORDS: PROCEDURE - judgments and orders - amending, varying and setting aside - leave sought by Fourth Cross Defendant to amend defence - question of proportionate liability - concurrent wrongdoer - whether Part 4 of the Civil Liability Act applies - proportionate liability provisions do not apply - failure to plead reliance on these provisions in defence - Part 4 of the Civil Liability Act must be pleaded by defendant - late amendment - leave refused - TORTS - negligence - apportionment of responsibility and damages - PROCEDURE - costs - departing from the general rule - conduct of parties - orders made

LEGISLATION CITED: Contracts Review Act 1987
Civil Liability Regulation 2003
Civil Liability Regulation 2009
Civil Liability Act 2002
Civil Liability Act 2005
Civil Procedure Act 2005
Trade Practices Act 1974 (Cth)
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987 (NSW)

CATEGORY: Principal judgment

CASES CITED: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Arian v Nguyen (2001) 33 MVR 37
Forster v Outred & Co (1982) 1 WLR 86
HSD Co Pty Ltd v Masu Financial Management Pty Ltd [2008] NSWSC 1279
HTW Valuers (Central Qld) Pty Ltd v Asonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640
Nemeth v Prynew Pty Ltd [2009] NSWSC 511
Multiplex Constructions Pty Limited v Irving [2005] NSWCA 1
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Permanent Custodians Limited v King and Ors [2009] NSWSC 600
Permanent Custodians Limited and Anor v King and Ors [2010] NSWSC 95
Reinhold v New South Wales Lotteries Corporation (No 2) [2008] NSWSC 187
Sydney South West Area Health Service v MD [2009] NSWCA 343; (2009) 260 ALR 702
Ucak v Avante Developments [2007] NSWSC 367
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

PARTIES: Plaintiff - Permanent Custodians Limited
First Defendant - Paul David King
Second Defendant - Charles Stuart King
Cross Claimant - Charles Stuart King
First Cross Defendant - Permanent Custodians Limited
Second Cross Defendant - Pepper Finance Corporation Ltd
Third Cross Defendant - Bill Laskaris trading as Able Finance
Fourth Cross Defendant - Dion Vertzayas, Vertzayas Lawyers Pty Ltd
Fifth Cross Defendant - Paul King

FILE NUMBER(S): SC 2006/265811

COUNSEL: Plaintiff - Mr…

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 Permanent Custodians Ltd v King

Details

AGLC: Permanent Custodians Ltd v King [2010] NSWSC 509
Case: [2010] NSWSC 509
Decision Date: 25 May 2010

CaseChat Overview and Summary

The case before the court was between Permanent Custodians Limited and King. The dispute involved a claim by King against Permanent Custodians Limited for negligence. King alleged that the defendant's negligence caused him to suffer significant personal injuries. The case was heard in the Supreme Court of New South Wales. The Fourth Cross Defendant sought leave to amend their defence, arguing that the court should consider the issue of proportionate liability under Part 4 of the Civil Liability Act. This argument was based on the premise that the plaintiff was a concurrent wrongdoer and that the defendant's liability should be apportioned accordingly.

The court was required to decide whether the Fourth Cross Defendant's proposed amendment was appropriate and whether it was permissible to raise the issue of proportionate liability for the first time in the defence. The court also needed to determine whether the application for leave to amend was made within a reasonable time and if the proposed amendment was likely to succeed on its merits. Furthermore, the court needed to consider whether it should depart from the general rule of costs following the conduct of the parties involved.

The court found that the Fourth Cross Defendant's proposed amendment was not appropriate. It was held that the provisions of Part 4 of the Civil Liability Act must be pleaded by the defendant, and since this was not done in the initial defence, the court was not willing to allow a late amendment. The court reasoned that to grant leave to amend the defence at this stage would cause significant prejudice to the plaintiff and would disrupt the orderly conduct of the trial. The court further held that the issue of proportionate liability could not be considered because the defendant had failed to plead reliance on these provisions in their defence. The court also found that the application for leave to amend was not made within a reasonable time, and the proposed amendment was unlikely to succeed on its merits. Finally, the court considered the conduct of the parties and made orders regarding costs, departing from the general rule.

The court refused the Fourth Cross Defendant leave to amend its defence and dismissed the application. The court ordered that the Fourth Cross Defendant pay the plaintiff's costs of the application. The court also ordered that the plaintiff be paid costs of the proceeding on an indemnity basis, due to the conduct of the Fourth Cross Defendant.

Orders