Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Richards v Gray [2013] NSWCA 402 Hearing dates: 29-30 April 2013 Decision date: 02 December 2013 Before: Bathurst CJ at [1], Beazley P at [162], McColl JA at [163], Basten JA at [164], Meagher JA at [241] Decision: 1. Appeal allowed in part.
2. Set aside order (1) entered on 16 December 2011 and, in place thereof, give judgment for the plaintiff in the sum of $11,424,000.
3. Each party file and serve within 14 days his or her primary submissions with respect to appropriate orders as to the costs of the trial and the costs of the appeal, such submissions not to exceed 10 pages.
4. If there have been offers of compromise relied upon by the parties, the submissions should be accompanied by an affidavit annexing the relevant material.
5. Each party should have a further period of 14 days to reply to the principal submissions of the other party, such replies not to exceed 5 pages.
[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: DAMAGES - award - measure of damages - personal injuries - negligence causing incapacity to manage own affairs - cost of fund management - whether certain amounts should be taken into account for the calculation of fund management costs.
DAMAGES - cost of fund management - principles in Todorovic v Waller (1981) 150 CLR 402 - whether an allowance should also be made in respect of managing the sum awarded for fund management costs.
DAMAGES - cost of fund management - whether an allowance should also be made in respect of managing income earned by the fund during the existence of the fund.
DAMAGES - cost of fund management - whether fund management fees should be allowed at rates charged by a private trustee or at the rates of the relevant public trustee.Legislation Cited: Civil Liability Act 2002 (NSW), s 5D
Civil Procedure Act 2005, ss 77, 79
Corporations Act 2001 (Cth), ss 601RAA, 601RAC, 601RAE, 601TAA, 601TAB, 601TBA, 601TBB, 601TBE, 601TDC, 601TDD; Pt 1.1A; Ch 5D, Div 4
Corporations Regulations 2001 (Cth), r 5D.1.04, Sch 8AA, Sch 8AC
Mental Health Act 2007
Motor Accidents Compensation Act 1999, s 127
Motor Vehicles (Third Party Insurance) Amendment Act 1984
NSW Trustee and Guardian Act 2009, ss 38, 41, 111, 115
NSW Trustee and Guardian Regulation 2008, cll 37, 38; Pt 4
Protected Estates Act 1983
Trustee Companies Act 1964, s 18Cases Cited: Bacha v Pettersen (Supreme Court of New South Wales, 20 September 1994, unreported)
Best v Greengrass [2012] WADC 44
Brindall v McDonald (Court of Appeal, 11 March 1985,…
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- AGLC
- Richards v Gray [2013] NSWCA 402
- Case
- [2013] NSWCA 402
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether an allowance should be made for the management of the sum awarded for fund management costs, and whether an allowance should also be made for the management of income earned by the fund during its existence. Furthermore, the Court had to determine whether fund management fees should be allowed at the rates charged by a private trustee or at the rates of the relevant public trustee.
The Court applied the principles established in *Todorovic v Waller* (1981) 150 CLR 402 regarding the assessment of damages. It reasoned that the plaintiff, having been incapacitated and requiring management of their affairs, was entitled to compensation for the costs associated with managing the awarded sum. The Court determined that an allowance should be made for the management of the fund management costs themselves, as well as for the income generated by the fund. Regarding the rate of fees, the Court found that the rates charged by a private trustee were appropriate, rather than those of a public trustee, in circumstances where a private trustee was engaged.
The Court of Appeal allowed the appeal in part, setting aside the original order and substituting a judgment for the plaintiff in the sum of $11,424,000. The parties were directed to file submissions regarding costs of the trial and appeal.
Orders
Orders of the court
1. Appeal allowed in part.
2. Set aside order (1) entered on 16 December 2011 and, in place thereof, give judgment for the plaintiff in the sum of $11,424,000.
3. Each party file and serve within 14 days his or her primary submissions with respect to appropriate orders as to the costs of the trial and the costs of the appeal, such submissions not to exceed 10 pages.
4. If there have been offers of compromise relied upon by the parties, the submissions should be accompanied by an affidavit annexing the relevant material.
5. Each party should have a further period of 14 days to reply to the principal submissions of the other party, such replies not to exceed 5 pages.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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