Szczepek v Prasad & & 3 Ors [2000] NSWSC 857

New South Wales Supreme Court

CITATION : Szczepek v Prasad & & 3 Ors [2000] NSWSC 857 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10826/2000 HEARING DATE(S) : 25 August 2000 JUDGMENT DATE : 29 August 2000

Sarah Belinda Szczepek (also known as Sarah Belinda Lewis) (Plaintiff)

Don Keshwa Prasad (First Defendant)

PARTIES : Margaret Olive Prasad (Second Defendant)

David O'Brien (Third Defendant)

Jason Green (Cross Defendant) JUDGMENT OF : Master Harrison

Mr Colin Cook (Plaintiff) COUNSEL : Mr Simon A Kerr (First & Second Defendants)

Lyons & Lyons, Bondi Junction SOLICITORS : (Plaintiff)

Colin Biggers & Paisley (First & Second Defendants) CATCHWORDS : Transfer from District Court LEGISLATION CITED : District Court Act - s 145 CASES CITED : Delponte v Thiess Bros Pty Limited (1965) NSWR 1468 at 1469 DECISION : See para 19

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 29 AUGUST 2000

10826/2000 - SARAH BELINDA SZCZEPEK (also known as SARAH BELINDA LEWIS) v DON KESHWA PRASAD & 3 ORS

JUDGMENT (Transfer from District Court)

1 MASTER: By summons filed 6 April 2000 the plaintiff seeks firstly, that District Court proceedings numbered 6356 of 1998 between Sarah Belinda Szczepek (also known as Sarah Belinda Lewis) as plaintiff and Don Keshwa Prasad, first defendant, Margaret Olive Prasad, second defendant, David O'Brien, third defendant and Jason Green the cross defendant be transferred from the District Court to the Supreme Court; and secondly, that the proceedings retain their priority as allocated by the District Court. The plaintiff relied on the affidavit of James William Lyons sworn 4 April 2000. The first defendant and second defendant did not consent to unlimited jurisdiction in the District Court and did not rely upon any affidavit evidence. 2 The first defendant is the registered proprietor of the property. It is alleged that either the first or second defendant was the owner and occupier of the property. It is alleged that the third defendant was the lessee of a house on the property and the occupier of the property. The statement of claim alleges that at about 10 pm on 25 November 1995 the plaintiff attended a party at the property. During the course of the party the plaintiff was standing on the balcony situated at the side of a house on the property and leaned against the balcony railing, when it collapsed causing the plaintiff to fall approximately 12 feet and sustain bodily injury. At the time the plaintiff was a school student and had just completed Year 11 at Kirrawee High School. 3 Section 145 of the District Court Act provides as follows: "Transfer of proceedings to Supreme Court (1) Proceedings may, upon the application of a party, be removed into the Supreme Court by order of the Supreme Court upon such terms as to payment of costs, giving security for the amount claimed or costs, or otherwise, as the Supreme Court thinks fit. (2) An action for damages in respect of personal injury or death (other than a motor accident claim) may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $750,000 or that there is other sufficient reason for trying the action in the Supreme Court. (3) A motor accident claim may be so removed only if the Supreme Court is satisfied that the amount to be awarded to the plaintiff in the case, if successful, would be likely to exceed $1,000,000 and that the case involves complex legal issues or issues of general public importance." 4 The principles to be applied in transferring the matter from the District Court to the Supreme Court were expressed by Asprey J in Delponte v Thiess Bros Pty Limited (1965) NSWR 1468 at 1469. His Honour said: "I think that if a person has, as the plaintiff alleges he has, a cause of action based upon reasonable grounds which would entitle him to be compensated beyond the statutory figure permitted in the District Court, then he should be, in ordinary circumstances, permitted to have that cause of action adjudicated upon by the appropriate tribunal."