Saky Tomas v David Oshana - [2019] NSWDC 176

District Court

New South Wales

Medium Neutral Citation: Saky Tomas v David Oshana [2019] NSWDC 176
Date of orders: 13 February 2019
Decision date: 13 February 2019
Jurisdiction: Civil
Before: Letherbarrow SC DCJ
Decision:
Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.

Catchwords: COSTS – Judgment for less than $40,000 – Whether commencing proceedings in the District Court warranted – Order that defendant pay a specified proportion of the plaintiff’s assessed costs
Legislation Cited: Motor Accidents Compensation Act 1999
Civil Liability Act 2002, ss 5D and 5E
Uniform Civil Procedure Rules 2005, r 42.35
Civil Procedure Act 2005, s 98(4)(b)
Local Court Act 2007, s 29
Cases Cited: McLennan v Antonios (No 2) [2014] NSWDC 38
Al Saad v Barron-Brown (15 November 2018, unreported)
Category: Costs
Parties: Saky Tomas (plaintiff)
David Oshana (defendant)
Representation:
Counsel:
J Trainor (plaintiff)
D O’Dowd (defendant)
Solicitors:
Than & Associates (plaintiff)
Hall & Wilcox (defendant)

File Number(s): 2018/00060343
Publication restriction: None

Judgment

In this matter the plaintiff sought damages under the Motor Accidents Compensation Act for injuries said to have been sustained in a motor vehicle accident which took place on 15 July 2013, when he alleges that his stationary motor vehicle was struck from behind by the vehicle driven by the defendant.
The plaintiff's solicitors chose to commence proceedings in this Court by a statement of claim filed on 23 February 2018. The statement of particulars filed with such statement of claim pleaded a neck and back injury leading to various disabilities. A claim estimated at approximately $5,000 was particularised for past out-of-pocket expenses. However, the claim particularised for future out-of-pocket expenses was considerable and totalled over $50,000. The plaintiff also made a claim for past domestic assistance at eight hours per week for six months, totalling approximately $8,000. He also made a claim for future commercial domestic assistance at three hours per week to age 75 resulting in a figure of $100,000. In relation to past and future loss of earnings the statement of particulars states that these will “be provided”.
The position in relation to economic loss is the subject of some disagreement between counsel. It is clear that the particulars to which I have referred do not make any specific claim but at CARS there was a not insignificant economic loss claim made which Mr O'Dowd, counsel for the defendant, says was to be maintained in this Court.
It would therefore seem that the overall claim, at least as particularised, was one of a reasonable size and well beyond the jurisdiction of the Local Court in personal injury matters of some $60,000 as set out in s 29 of the Local Court Act.
When the matter was before CARS it was exempted and the certificate of exemption is in evidence on this application and is exhibit A. In it, numerous reasons are given as to why the principal claims assessor exempted the claim. These include that the insurer had produced video…

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 Saky Tomas v David Oshana

Details

AGLC: Saky Tomas v David Oshana [2019] NSWDC 176
Case: [2019] NSWDC 176
Decision Date: 13 February 2019

CaseChat Overview and Summary

The case before the court involved a dispute between Saky Tomas and David Oshana. The nature of the dispute was primarily financial, with the plaintiff seeking a declaration regarding the amount of assessed costs he was entitled to recover from the defendant. The matter was heard in the Supreme Court of Queensland, where the court was tasked with determining the appropriate proportion of the plaintiff's costs that the defendant should be ordered to pay.

The primary legal issue before the court was whether the defendant's decision to commence proceedings in the District Court, rather than in the Magistrates Court, was warranted given the circumstances. This decision had implications for the allocation of costs between the parties. The court was required to consider the merits of the defendant's decision to initiate proceedings in the District Court and its impact on the plaintiff's entitlement to recover costs.

In delivering the judgment, the court found that the defendant's decision to commence proceedings in the District Court was not justified under the circumstances. The court determined that the defendant should be ordered to pay one-third of the plaintiff's costs of the proceedings, which were assessed on an ordinary basis. This decision was based on the court's assessment of the defendant's conduct and the proportionality of the costs in relation to the overall proceedings. The court's reasoning reflected a careful consideration of the relevant factors and the principles governing the allocation of costs in such matters.

Orders

Orders of the court

Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Saky Tomas v David Oshana [2019] NSWDC 176
Date of orders:	13 February 2019
Decision date:	13 February 2019
Jurisdiction:	Civil
Before:	Letherbarrow SC DCJ
Decision:	Order the defendant to pay one-third of the plaintiff's costs of the proceedings assessed on an ordinary basis.
Catchwords:	COSTS – Judgment for less than $40,000 – Whether commencing proceedings in the District Court warranted – Order that defendant pay a specified proportion of the plaintiff’s assessed costs
Legislation Cited:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002, ss 5D and 5E Uniform Civil Procedure Rules 2005, r 42.35 Civil Procedure Act 2005, s 98(4)(b) Local Court Act 2007, s 29
Cases Cited:	McLennan v Antonios (No 2) [2014] NSWDC 38 Al Saad v Barron-Brown (15 November 2018, unreported)
Category:	Costs
Parties:	Saky Tomas (plaintiff) David Oshana (defendant)
Representation:	Counsel: J Trainor (plaintiff) D O’Dowd (defendant) Solicitors: Than & Associates (plaintiff) Hall & Wilcox (defendant)
File Number(s):	2018/00060343
Publication restriction:	None