Vasailes v Robertson; Vasailes v Tang & Anor [2002] NSWCA 177

New South Wales Court of Appeal

CITATION : Vasailes v Robertson; Vasailes v Tang & Anor [2002] NSWCA 177 FILE NUMBER(S) : CA 40304/01; 40303/01 HEARING DATE(S) : 15 May 2002 JUDGMENT DATE : 20 June 2002

Mr Theo Vasailes PARTIES : Ms Tracey Robertson Mr Eugene Tang The University of New South Wales JUDGMENT OF : Hodgson JA at 1; Davies AJA at 2; Pearlman AJA at 53

LOWER COURT JURISDICTION : District Court LOWER COURT 6179/97; 6197/97 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

Mr J W Conomos for the Appellant COUNSEL : Mr G R Petty SC for the Respondent in 40304/01 Mr D Davies SC with Mr S Davis for the Respondents in 40303/01 Carroll & O'Dea for the Appellant SOLICITORS : Adelsteins Solicitors for the Respondent in 40304/01 Hunt & Hunt for the Respondents in 40303/01 CATCHWORDS : PERSONAL INJURY - assessment of damages - whether trial judge provided reasons for rejection of plaintiff's evidence - whether trial judge failed to give weight to evidence of independent witnesses - whether trial judge erred by failing to award damages for past economic loss although he allowed for future economic loss - PRACTICE - damages paid under verdict later set aside on appeal - in the District Court can these sums be offset against damages awarded on retrial - should there be a counterclaim - can the counterclaim be made nunc pro tunc after verdict announced in the retrial LEGISLATION CITED : District Court Act 1973, s60 Supreme Court Act 1970, s23, s63, s91 Goose v Wilson Sandford & Co [1998] EWCA Civ 245 Government Insurance Office of New South Wales v Healy [No.2] (1991) 22 NSWLR 380 Hadid v Redpath [2001] NSWCA 416 CASES CITED: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Moylan v The Nutrasweet Company [2000] NSWCA 337 R v Maxwell (unreported, Court of Criminal Appeal, 23 December 1998) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 16 NSWLR 247 Warren v Coombes (1979) 142 CLR 531 DECISION : 1. In the Robertson case, (a) appeal allowed; (b) orders below set aside and in lieu thereof it is ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes against Tracey Robertson in the sum of $114,823 with the costs of the proceedings below; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the counterclaim, Tracey Robertson have a verdict and judgment against Theo Vasailes in the sum of $101,588; 2. In the Tang case, (a) appeal allowed; (b) orders below set aside and in lieu thereof it is ordered that: (i) on the claim, there be a verdict and judgment for Theo Vasailes in the sum of $16,692 with the costs of the proceedings below up to and including 16 August 1999; (ii) the Rules of the District Court with respect to the filing of a counterclaim be dispensed with; (iii) on the cross-claim there be verdict and judgment for Eugene Tang against Theo Vasailes in the sum of $85,760; 3. Liberty to apply in relation to the terms of these orders reserved.