RFD Australia Pty Limited v Guo and the Nominal Defendant No. 2

[2012] NSWDC 134

District Court

New South Wales

Medium Neutral Citation:

RFD Australia Pty Limited v Guo & The Nominal Defendant No. 2 [2012] NSWDC 134

Hearing dates:

17, 18 & 19/04/2012

Decision date:

31 August 2012

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

See paragraph [8] for orders

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - motor vehicle accident - subrogated action by employer's worker's compensation insurer pursuing tortfeasor to recover payments made to injured worker

Legislation Cited:

Workers' Compensation Act 1987, s 151Z

Cases Cited:

Eltana v Guo & The Nominal Defendant [2012] NSWDC [132].

Category:

Principal judgment

Parties:

RFD Australia Pty Limited (Plaintiff)
Peng Guo (First defendant)
Nominal Defendant (Second defendant)

Representation:

Mr P Khandhar (Plaintiff)
Mr J Ryan (First defendant)
Ms C Allen (Second defendant)
Turks Legal (Plaintiff)
Ferguson Lawyers (First defendant)
Lee & Lyons (Second defendant)

File Number(s):

2010/267882

Judgment

Nature of case

1. In these proceedings numbered 2010/266490, which were originally transferred to the District Court from the Local Court, the plaintiff, RFD Australian Pty Limited ["RFD"] claims damages against the first defendant, Mr Peng Guo, and from the second defendant, the Nominal Defendant, pursuant to s 151Z of the Workers' Compensation Act 1987 seeking the recovery of payments of workers' compensation made to RFD's employee, Mr Nael Eltana, in respect of injuries Mr Eltana received in a motor vehicle accident that occurred on 2 June 2008.

Facts

1. Findings of fact on liability concerning the responsibility of the defendants for Mr Eltana's motor vehicle accident are the subject of a judgment in related proceedings 2010/422515 which were brought by Mrs Bidaya Eltana against the present defendants. Accordingly, the liability facts do not require reiteration in these reasons as the evidence in those primary proceedings brought by Mrs Eltana was also taken to be evidence in these proceedings: Eltana v Guo & The Nominal Defendant [2012] NSWDC 132, at [5] - [7].

1. Although he was a passenger in the vehicle driven by Mrs Eltana, Mr Eltana has not brought his own claim for damages.

1. The amount of the plaintiff's claim for recovery of workers' compensation payments to Mrs Eltana, which is not disputed, is in the sum of $54,328.33 plus interest up until the time of judgment in the agreed amount of $10,175.20. The total of these sums is $64,503.53.

Disposition and costs

1. Consequent upon the findings I have made in the related proceedings, as identified in paragraph [2] above, it follows that the plaintiff must succeed in these proceedings against the first defendant, Mr Guo, and must fail in the proceedings against the second defendant, the Nominal Defendant.

1. It also follows that the respective cross claims between defendants must also be dismissed.

1. The cost orders made in the related proceedings should guide the cost orders to be made in these proceedings.

Orders

1. I make the following orders:

(1)   Verdict and judgment for the plaintiff RFD Australia Pty Limited against the first defendant, Mr Peng Guo, in the sum of $64,503.53;

(2)   Verdict and judgment for the second defendant, the Nominal Defendant on the plaintiff's claim against that defendant;

(3)   The first defendant, Mr Peng Guo, is to pay the plaintiff's costs of the proceedings on the ordinary basis, unless otherwise ordered;

(4)   The plaintiff is to pay the costs of the second defendant, the Nominal Defendant, in defending the proceedings brought against that defendant, but such costs are to be paid by the first defendant, Mr Peng Guo, on the ordinary basis unless otherwise ordered;

(5)   Each of the cross-claims brought by the respective defendants are dismissed;

(6)   Each defendant/cross-claimant is to pay its own costs of the dismissed cross-claims;

(7)   The exhibits may be returned;

(8)   Liberty to apply on 7 days notice if further orders are required;

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Decision last updated: 31 August 2012