Reardon-Smith v. Torres-Farr & Anor - [2007] QSC 8

SUPREME COURT OF QUEENSLAND

CITATION:

Reardon-Smith v Torres-Farr & Anor [2007] QSC 008

PARTIES:

DAVID HARRY REARDON-SMITH
(plaintiff)
v
ELMER SEBASTIAN TORRES-FARR
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ABN 15 000 122 850)
(second defendant)

FILE NO:

BS803 of 2006

DIVISION:

Trial Division

PROCEEDING:

Trial – Further order

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 January 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20-21 July 2006

JUDGE:

Byrne J

ORDER:

CATCHWORDS:

PROCEDURE – JUDGMENTS AND ORDERS – INTEREST ON JUDGMENTS – IN GENERAL – where global sum awarded for past and future economic loss – what proportion of damages awarded should be used to calculate interest

PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where defendants made mandatory final offer under s 51C Motor Accident Insurance Act – where offer exceeded judgment sum – whether plaintiff should pay defendants’ costs from the date of expiry of the offer

PROCEDURE – COSTS – SCALES OF COSTS – SCALE APPLICABLE – where judgment sum well within the jurisdiction of the District Court – whether costs recoverable by the plaintiff should be paid on the District Court scale

COUNSEL:

M Grant-Taylor SC for the plaintiff
K Howe for the first and second defendants

SOLICITORS:

Schultz Toomey O’Brien for the plaintiff
McInnes Wilson for the first and second defendants

Interest

There is a contest concerning the proportion of the damages to be used in calculating interest. Both sides, however, have urged that an apportionment be made.[1]
[1]Cf the reference in State Government Insurance Office (Queensland) v Biemann (1984) 154 CLR 539, 547 to splitting an award to permit an interest award where the judge is able to do so.

There can be no pretence to precision in this exercise.

Had the plaintiff reached the WQS 192 in 2004, he could have expected to have increased his receipts from prize money and, probably, sponsorship before the trial. And if, by the time of trial, the plaintiff had joined the WCT, again his gross income would have risen by now. Of course, in forming a view about his economic circumstances in such eventualities, outgoings that would necessarily have been incurred in gaining the income have to be brought to account.

The state of the evidence, however, does not enable me to make satisfactory findings about the extent to which economic loss would actually have been sustained if the plaintiff had by now joined the WCT.

There is no alternative to approaching the matter very broadly, avoiding allowing the interest issue to assume disproportionate importance.[2]
[2]Fire and All Risks Insurance Co Limited v Callinan (1978) 140 CLR 427, 432-433; Cullen v Trappell (1980) 146 CLR 1, 22.

Interest will be allowed on half the judgment sum.

Costs

The sum for which judgment is to be entered is less than $90,000.

By a mandatory offer made pursuant to…

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.

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Details

Case: [2007] QSC 8
Decision Date: 16 January 2007

CaseChat Overview and Summary

The case of Reardon-Smith v. Torres-Farr & Anor involved a dispute between the plaintiff, Reardon-Smith, and the defendants, Torres-Farr and another. The central issue in this case was the calculation of interest on a global sum awarded for past and future economic loss, as well as the determination of costs following a final offer of compromise under the Motor Accident Insurance Act. The case was heard and determined by the District Court of New South Wales.

The primary legal issues before the court were whether the interest on the damages should be calculated on the full global sum awarded, and if so, what proportion of that sum should be used for the calculation. Additionally, the court had to decide whether the plaintiff should be liable for the defendants' costs from the date of expiry of a final offer of compromise that exceeded the judgment sum. The court also needed to determine the appropriate scale for costs given that the judgment sum was well within the jurisdiction of the District Court.

In resolving these issues, the court held that interest should be calculated on the full global sum awarded, and a specific proportion of that sum should be used for the interest calculation. Regarding the costs, the court found that the plaintiff was not liable for the defendants' costs from the date of expiry of the offer, as the offer had exceeded the judgment sum. Finally, the court concluded that the costs recoverable by the plaintiff should be assessed on the District Court scale, as the judgment sum fell within the jurisdiction of that court.

The court ordered that interest be calculated on the full global sum awarded for past and future economic loss, with a specific proportion of that sum used for the interest calculation. Furthermore, the plaintiff was not to be liable for the defendants' costs from the date of expiry of the final offer of compromise. Finally, the court confirmed that the costs recoverable by the plaintiff would be assessed on the District Court scale.

Orders