Sutton v Firth (No 3) - [2009] NSWDC 68

CITATION: Sutton v Firth (No 3) [2009] NSWDC 68

HEARING DATE(S): 17 March 2009

JUDGMENT DATE:
17 March 2009

JURISDICTION: Civil

JUDGMENT OF: Hungerford ADCJ

DECISION: 1.Verdict and judgment for the plaintiff against the defendant in the amount of $107,415.29.
2.Defendant is to pay the plaintiff’s costs of the proceedings.
3.The judgment be stayed pending further order conditional upon the defendant filing and serving a notice of appeal with appointment within 28 days.
4.The plaintiff be granted liberty to restore the matter to the list to argue that the stay be lifted
5.The Court notes that there is an issue between the plaintiff and the defendant in respect of the costs of the proceedings in the Supreme Court of New South Wales, No 13429 of 2006 and that the parties will pursue that matter in the Supreme Court.
6.I direct that the exhibits in this matter remain with the file and they may be returned on application by the parties to the Registrar after 28 days, but subject to the resolution of any appeal.

CATCHWORDS: INTEREST - Rate of interest on judgment - Whether under Civil Liability Act 2002 or Uniform Civil Procedure Rules 2005 - Professional negligence action for loss of opportunity to bring claim for common law damages - Commonwealth Government bond rate applicable and not court rates - JUDGMENT - Interest rate applicable - Stay pending appeal - Costs

LEGISLATION CITED: Civil Liability Act 2002, s 18
Uniform Civil Procedure Rules 2005, Sch 5
Workers Compensation Act 1987

PARTIES: Renee Leslie Sutton - Plaintiff
Stephen Paul Firth - Defendant

FILE NUMBER(S): No 3309 of 2005

COUNSEL: Mr KW Andrews for Plaintiff
Mr GM Watson SC and Mr RI Goodridge for Defendant

SOLICITORS: Brennan Legal for Plaintiff
Firths - The Compensation Lawyers for Defendant

JUDGMENT
(ex tempore)
1 In relation to the final determination of this matter, the question of interest has arisen. The Court on 12 March last gave reasons for judgment ([2009] NSWDC 53) and found a verdict in favour of the plaintiff against the defendant in the amount of $81,896.38. On that verdict amount the plaintiff has made an application for judgment to include interest.

2 The application is based upon the rates prescribed from time to time since this matter arose by way of liability under Sch 5 of the Uniform Civil Procedure Rules 2005. It is agreed mathematically that that would represent interest for the period concerned to the date of judgment in the sum of $62,241.26 giving a total verdict of $144,137.64. Against that, the defendant relies upon s 18 of the Civil Liability Act 2002 for interest to be over the period in question according to the rate currently prescribed for the Commonwealth Government bond rate as published by the Reserve Bank of Australia pursuant to s 18(4). I am advised that those figures are available and the amount of interest in that situation is $25,518.91 in which case the total verdict would be $107,415.29. As I understand it,…

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 Sutton v Firth (No 3)

Details

AGLC: Sutton v Firth (No 3) [2009] NSWDC 68
Case: [2009] NSWDC 68
Decision Date: 17 March 2009

CaseChat Overview and Summary

In the case of Sutton v Firth (No 3), the parties involved were Sutton, the plaintiff, and Firth, the defendant. The dispute centred around the rate of interest applicable to a judgment sum, specifically whether it was governed by the Civil Liability Act 2002 or the Uniform Civil Procedure Rules 2005. The matter was heard in the Supreme Court of New South Wales. The plaintiff claimed damages for professional negligence, alleging a loss of opportunity to bring a claim for common law damages.

The primary legal issue before the court was the determination of the correct rate of interest on the judgment sum. The court needed to decide whether the Commonwealth Government bond rate or the court rates should apply. This decision was crucial as it would significantly impact the amount of interest awarded to the plaintiff. Additionally, the court had to consider whether the judgment should be stayed pending an appeal and the costs associated with the proceedings.

The court concluded that the Commonwealth Government bond rate was applicable to the judgment sum. It found that the statutory interest prescribed by the Civil Liability Act 2002 was not applicable in this context. The court granted a stay of the judgment pending the outcome of an appeal, with the condition that the defendant must file and serve a notice of appeal with appointment within 28 days. The plaintiff was granted liberty to restore the matter to the list to argue for the lifting of the stay. The court also noted the ongoing dispute between the parties regarding the costs of the proceedings in another case in the Supreme Court and directed that the exhibits remain with the file, subject to the resolution of any appeal.

Orders

Orders of the court

1.Verdict and judgment for the plaintiff against the defendant in the amount of $107,415.29. 2.Defendant is to pay the plaintiff's costs of the proceedings. 3.The judgment be stayed pending further order conditional upon the defendant filing and serving a notice of appeal with appointment within 28 days. 4.The plaintiff be granted liberty to restore the matter to the list to argue that the stay be lifted 5.The Court notes that there is an issue between the plaintiff and the defendant in respect of the costs of the proceedings in the Supreme Court of New South Wales, No 13429 of 2006 and that the parties will pursue that matter in the Supreme Court. 6.I direct that the exhibits in this matter remain with the file and they may be returned on application by the parties to the Registrar after 28 days, but subject to the resolution of any appeal.

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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CITATION:	Sutton v Firth (No 3) [2009] NSWDC 68
HEARING DATE(S):	17 March 2009
JUDGMENT DATE:	17 March 2009
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1.Verdict and judgment for the plaintiff against the defendant in the amount of $107,415.29. 2.Defendant is to pay the plaintiff’s costs of the proceedings. 3.The judgment be stayed pending further order conditional upon the defendant filing and serving a notice of appeal with appointment within 28 days. 4.The plaintiff be granted liberty to restore the matter to the list to argue that the stay be lifted 5.The Court notes that there is an issue between the plaintiff and the defendant in respect of the costs of the proceedings in the Supreme Court of New South Wales, No 13429 of 2006 and that the parties will pursue that matter in the Supreme Court. 6.I direct that the exhibits in this matter remain with the file and they may be returned on application by the parties to the Registrar after 28 days, but subject to the resolution of any appeal.
CATCHWORDS:	INTEREST - Rate of interest on judgment - Whether under Civil Liability Act 2002 or Uniform Civil Procedure Rules 2005 - Professional negligence action for loss of opportunity to bring claim for common law damages - Commonwealth Government bond rate applicable and not court rates - JUDGMENT - Interest rate applicable - Stay pending appeal - Costs
LEGISLATION CITED:	Civil Liability Act 2002, s 18 Uniform Civil Procedure Rules 2005, Sch 5 Workers Compensation Act 1987
PARTIES:	Renee Leslie Sutton - Plaintiff Stephen Paul Firth - Defendant
FILE NUMBER(S):	No 3309 of 2005
COUNSEL:	Mr KW Andrews for Plaintiff Mr GM Watson SC and Mr RI Goodridge for Defendant
SOLICITORS:	Brennan Legal for Plaintiff Firths - The Compensation Lawyers for Defendant