TRAN v THE GOVERNMENT INSURANCE OFFICE OF NSW (NO 2) [2001] NSWCA 211

Reported Decision : 51 NSWLR 733

New South Wales Court of Appeal

CITATION : TRAN v THE GOVERNMENT INSURANCE OFFICE OF NSW (NO 2) [2001] NSWCA 211 FILE NUMBER(S) : CA 40270/99 HEARING DATE(S) : 3 May 2001 JUDGMENT DATE : 5 July 2001

PARTIES : My Van Nguyen TRAN v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES (NO 2) JUDGMENT OF : Mason P at 1; Stein JA at 1; Fitzgerald AJA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT 9451/97 FILE NUMBER(S) : LOWER COURT Naughton DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: P Menzies QC/W R Ward Respondent: N J Satouris (Sol) SOLICITORS : Appellant: Gajic & Co Respondent: McLachlan Chilton CATCHWORDS : Motor Accidents Act 1988, s73(4) - claim for interest - offer of settlement in fixed sum "plus costs" - value of costs to be disregarded in determining whether threshold passed (D) DECISION : See par 10.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40270/99 DC 9451/97 MASON P STEIN JA FITZGERALD AJA

Thursday 5 July 2001 My Van Nguyen TRAN v THE GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

JUDGMENT 1 THE COURT: The Court as presently constituted gave judgment in this matter on 16 August 2000 (Tran v Government Insurance Office of Australia [2000] NSWCA 217). 2 The appellant filed a Notice of Motion seeking an award of interest with respect to the substituted judgment in her favour in the sum of $247,692.29. The application was opposed and it was directed that it be dealt with on written submissions. These have been considered. 3 The respondent opposes the award of interest on the ground that the requirements of s73(4)(a)(iv) of the Motor Accidents Act 1998 were not met. 4 Section 73 precludes the award of interest on damages absolutely as regards some heads of damages and conditionally as regards others. This application concerns the latter category. So far as presently relevant s73(4) states: The following provisions apply to damages, other than damages to which subsection (2) or (3) applies, payable in relation to a motor accident: (a) interest is not payable (and a court cannot order the payment of interest on such damages unless: (i) …. (iv) the defendant has made an offer of settlement, the amount of all damages of any kind awarded by the court (without the addition of any interest) is more than 20% higher than the highest amount offered by the defendant and the highest amount is unreasonable having regard to the information available to the defendant when the offer was made.