STATE RAIL AUTHORITY OF NSW v CHARTAS [1996] NSWCA 498

STATE RAIL AUTHORITY OF NSW v CHARTAS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, HANDLEY JA and CoLe JA 10 May 1996

[1996] NSWCA 498

Priestley JA. The appeal before the Court is one which, when commenced, involved five explicit grounds of appeal. When the matter came on for hearing today, the appellant abandoned four of the five explicit grounds and also abandoned a sixth and catch all ground.

The only ground of appeal remaining was that directed towards the interest figure of $25,000 which had been allowed as part of the judgment sum pursuant to s 73 of the Motor Accidents Act. As a result of the decision in Andjelic v Stuart Marslan, by his Tutor The Protective Commissioner of NSW (High Court, 17 April 1996) it became common ground between the parties that the $25,000 figure had to be adjusted.

The parties were able to agree that $7975 would have to be deducted from the judgment amount. Actually, to be more precise, the respondent (who had been the plaintiff at the hearing) agreed that that figure was the excess over what should have been calculated according to the principles which the High Court laid down in Marslan. Counsel for the respondent did not accept that it necessarily followed that that amount had to be deducted from thejudgment sum. However, although he did not concede that, it was pretty obvious to all concerned that the Court would be likely to allow the appeal in order to set aside the judgment below and enter a new judgment which would have deducted from it that figure.

Counsel for the respondent submitted an appropriate order, in the circumstances, would be that the Court should substitute a judgment of $107,827 to take effect as at 20 April 1994, the date of the original judgment, leaving the original order for costs undisturbed and should order the appellant to pay the costs of the appeal. The reason advanced for this was that until either yesterday or today, so far as the respondent was concerned, the appeal was one which may have gone ahead on all five of the explicit grounds.