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Pritchard v Trius Constructions Pty Ltd (No 2)

Pritchard v Trius Constructions Pty Ltd (No 2)

Case [2011] NSWSC 1114 19 September 2011

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Supreme Court

New South Wales

Medium Neutral Citation: PRITCHARD v TRIUS CONSTRUCTIONS PTY LIMITED & Ors [No 2] [2011] NSWSC 1114
Hearing dates: 11 August 2011
Decision date: 19 September 2011
Jurisdiction: Civil
Before: HOEBEN J
Decision:
1. Prejudgment interest to be calculated in accordance with s18 CLA.
2. Document of 10 May 2011 was an Offer of Compromise in accordance with Part 20 rule 20.26 UCPR.

Catchwords: PRACTICE AND PROCEDURE - personal injury damages paid by defendant to plaintiff - claim for contribution pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 by defendant against employer - claim for contribution successful - whether pre-judgment interest payable on contribution should be calculated under s18 Civil Liability Act 2002 or s101 Civil Procedure Act 2005.
COSTS - whether offer operated as an offer of compromise under Pt 20 r 20.26 Uniform Civil Procedure Rules 2005 - whether offer was "exclusive of costs" - meaning of words "exclusive of costs" in Pt 20 r 20.26(2) UCPR.
Legislation Cited: Civil Liability Act 2002
Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Act 1988
Cases Cited: Calderbank v Calderbank (1975) 3 WLR 586
Dean v Stockland Property Management Pty Ltd & Anor (No 2) [2010] NSWCA 141
Firth v Sutton [2010] NSWCA 90
Frisbo Holdings Pty Ltd v Austin Australia Pty Ltd (No 2) [2010] NSWSC 298
Howard Rotavator Pty Limtied v Wilson (1987) 8 NSWLR 498
Kwanchi Pty Ltd v Kocsis (1996) 40 NSWLR 270
Penrith Rugby League Club Ltd t/as Cardiff Panthers v Elliot (No 2) [2009] NSWCA 356
Pritchard v Trius Constructions Pty Limited & Ors [2011] NSWSC 749
Tarabay v Fifty Property Investments Pty Ltd [2009] NSWSC 951
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor (No 2) [2007] NSWCA 194
Westpac Corporation v Tomassian (1992) 32 NSWLR 207
Category: Costs
Parties: Terrence Stephen Pritchard - Plaintiff
Trius Constructions Pty Limited - First Defendant
Oceanic Coal Australia Pty Ltd - Second Defendant
Oceanic Coal Australia Pty Ltd - Cross-Claimant
Trius Constructions Pty Limited - Cross-Defendant
Representation: Mr J Sleight - Cross-Claimant
Mr D Lloyd - Cross-Defendant
MRM Lawyers - Cross-Claimant
Wotton & Kearney - Cross Defendant

File Number(s): 2010/00064178

Judgment

HIS HONOUR:

Nature of application

Judgment was handed down in the principal proceedings on 20 July 2011 ( Pritchard v Trius Constructions Pty Limited & Ors [2011] NSWSC 749). The background to the judgment was that the plaintiff, an employee of Trius, which was a subcontractor of Oceanic, suffered serious injuries while he was working at a coal preparation plant conducted by Oceanic. The plaintiff brought proceedings in negligence against Trius and Oceanic. In due course the plaintiff settled his claim against Oceanic and discontinued against Trius.

The judgment related to the cross-claim by Oceanic against Trius for contribution to that settlement pursuant to s5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 and for a full indemnity for breach of contract.

The effect of the judgment was to reject Oceanic's…

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 Pritchard v Trius Constructions Pty Ltd (No 2)

Details

AGLC: Pritchard v Trius Constructions Pty Ltd (No 2) [2011] NSWSC 1114
Case: [2011] NSWSC 1114
Decision Date: 19 September 2011

CaseChat Overview and Summary

The case of Pritchard v Trius Constructions Pty Ltd (No 2) involved a claim for contribution by the defendant, Trius Constructions Pty Ltd, against its employer, the plaintiff. The dispute arose from a personal injury claim where damages had been paid by the defendant to the plaintiff. Trius Constructions sought contribution from its employer under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946, which allows for a claim of contribution when one party has been compelled to pay more than their share of the damages due to another party's default. The primary legal issue before the court was the calculation of pre-judgment interest on the contribution awarded, specifically whether it should be calculated under section 18 of the Civil Liability Act 2002 or section 101 of the Civil Procedure Act 2005.

The court examined the statutory provisions and the applicable legislative frameworks. It found that section 18 of the Civil Liability Act 2002 provides for pre-judgment interest in personal injury cases, while section 101 of the Civil Procedure Act 2005 deals with interest on money claims in general. The court concluded that since the contribution claim was not a personal injury claim, section 18 did not apply, and section 101 was the appropriate provision for calculating pre-judgment interest. Additionally, the court considered whether an offer made by the defendant operated as an offer of compromise under the Uniform Civil Procedure Rules 2005, specifically whether the offer was "exclusive of costs" as per rule 20.26(2). The court found that the offer was indeed exclusive of costs, and thus the defendant's liability for costs was assessed accordingly.

The court's decision was that the pre-judgment interest on the contribution should be calculated under section 101 of the Civil Procedure Act 2005, and that the offer made by the defendant was exclusive of costs as per rule 20.26(2) of the UCPR. Consequently, the court ordered Trius Constructions Pty Ltd to pay the calculated interest and the associated costs.

Orders