Tsu v Nemeth

Case [2012] NSWCA 29


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Tsu v Nemeth & Anor [2012] NSWCA 29
Hearing dates:07/11/2011
Decision date: 06 March 2012
Before: Beazley JA at 1
Whealy JA at 2
Handley AJA at 3
Decision:

(1) Appeal by Mr Peter Tsu dismissed;

(2) Cross appeal by Mr Anthony Nemeth as executor of the estate of the late Ferdinand Nemeth dismissed with no order as to costs;

(3) Cross appeal by Piling Contractors (Qld) Pty Ltd (Piling) dismissed;

(4) Prynew Pty Ltd (in liq) joined as a submitting respondent and cross respondent;

(5) Prynew and Mr Peter Tsu jointly and severally to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of the appeal until 17 August 2011 when Prynew discontinued;

(6) Mr Peter Tsu to pay Mr Anthony Nemeth's costs of the appeal after 17 August 2011;

(7) Piling to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of its cross appeal and application for leave to cross appeal;

(8) Judgment for Prynew against Mr Peter Tsu for 19%, and against Piling for 25% of the costs payable to the plaintiff under the orders of Macready AsJ of 20 July 2009;

(9) Judgment for Mr Peter Tsu against Prynew for 56% and, against Piling for 25% of the costs payable to the plaintiff under the said orders;

(10) Judgment for Piling against Prynew for 56% and against Mr Peter Tsu for 19% of the costs payable to the plaintiff under the said orders;

(11) The judgments for contribution for and against Piling are subject to its right of set off against the plaintiff for the costs payable to it under Order 6 made by Macready AsJ on 20 July 2009;

(12) The solicitors for the appellant are to promptly serve the liquidator of Prynew with a copy of these orders after they have been formally entered. Liberty for the liquidator of Prynew to apply, within 35 days of service on him of a copy of these orders as entered, to set aside Orders 8, 9, and 10 as against it;

(13) No order as to the costs of Virginia Nemeth in this Court.

[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: CONCURRENT TORTFEASORS - damages - apportionment - separate judgments - Environmental Planning and Assessment Act s 109Z - Civil Liability Act s 35 - whether joint and several orders for costs appropriate.
COSTS - concurrent tortfeasors - damages apportioned - whether joint and several orders for costs appropriate.
PRACTICE - action referred for enquiry and report - report substantially adopted by Judge - final judgment not entered…

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AGLC
Tsu v Nemeth [2012] NSWCA 29
Case
[2012] NSWCA 29
Decision Date

CaseChat Overview and Summary

The appeal concerned concurrent tortfeasors and the appropriate orders for costs following an apportionment of damages. The parties involved were Mr Peter Tsu, Mr Anthony Nemeth (as executor of the estate of the late Ferdinand Nemeth), and Piling Contractors (Qld) Pty Ltd (Piling), with Prynew Pty Ltd (in liq) also a significant party. The dispute arose from an action where damages had been apportioned between these parties. The court was the Court of Appeal of New South Wales.

The primary legal issues before the court were whether joint and several orders for costs were appropriate in circumstances where damages had been apportioned between concurrent tortfeasors, and the implications of a discontinuance by one party on the costs orders. Additionally, the court considered applications to re-open proceedings or for a new trial based on new evidence presented in hearsay form, where the witness was unavailable for cross-examination and their credibility could not be assessed.

The court dismissed the appeal by Mr Peter Tsu and the cross-appeals by Mr Anthony Nemeth and Piling. In relation to costs, the court made specific orders reflecting the apportionment of liability and the discontinuance of Prynew's involvement. Mr Peter Tsu and Prynew were ordered to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth jointly and severally up to the date of Prynew's discontinuance, after which Mr Peter Tsu was solely liable for those costs. Piling was ordered to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth in relation to its cross-appeal. Further orders detailed the apportionment of costs between Mr Peter Tsu, Prynew, and Piling concerning the costs payable to the plaintiff, with provisions for set-off and an opportunity for the liquidator of Prynew to apply to set aside certain cost orders. No order was made as to the costs of Virginia Nemeth.

Orders

Orders of the court

(1) Appeal by Mr Peter Tsu dismissed;

(2) Cross appeal by Mr Anthony Nemeth as executor of the estate of the late Ferdinand Nemeth dismissed with no order as to costs;

(3) Cross appeal by Piling Contractors (Qld) Pty Ltd (Piling) dismissed;

(4) Prynew Pty Ltd (in liq) joined as a submitting respondent and cross respondent;

(5) Prynew and Mr Peter Tsu jointly and severally to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of the appeal until 17 August 2011 when Prynew discontinued;

(6) Mr Peter Tsu to pay Mr Anthony Nemeth's costs of the appeal after 17 August 2011;

(7) Piling to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of its cross appeal and application for leave to cross appeal;

(8) Judgment for Prynew against Mr Peter Tsu for 19%, and against Piling for 25% of the costs payable to the plaintiff under the orders of Macready AsJ of 20 July 2009;

(9) Judgment for Mr Peter Tsu against Prynew for 56% and, against Piling for 25% of the costs payable to the plaintiff under the said orders;

(10) Judgment for Piling against Prynew for 56% and against Mr Peter Tsu for 19% of the costs payable to the plaintiff under the said orders;

(11) The judgments for contribution for and against Piling are subject to its right of set off against the plaintiff for the costs payable to it under Order 6 made by Macready AsJ on 20 July 2009;

(12) The solicitors for the appellant are to promptly serve the liquidator of Prynew with a copy of these orders after they have been formally entered. Liberty for the liquidator of Prynew to apply, within 35 days of service on him of a copy of these orders as entered, to set aside Orders 8, 9, and 10 as against it;

(13) No order as to the costs of Virginia Nemeth in this Court.

[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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