Liverpool City Council v Millett & Anor; Liverpool City Council v WadeLiverpool City Council v Millett & Anor [2004] NSWCA 340

New South Wales Court of Appeal

CITATION : Liverpool City Council v Millett & Anor; Liverpool City Council v WadeLiverpool City Council v Millett & Anor [2004] NSWCA 340 HEARING DATE(S) : 15 September 2004 JUDGMENT DATE : 9 December 2004

JUDGMENT OF : Mason P at 1; Sheller JA at 2; Tobias JA at 19 DECISION : In CA 40130/03; a) Appeal allowed in part; b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that; (i) there be judgment for the plaintiff as against the second defendant in the amount of $58,351.70; (ii) the cross-claims be dismissed; (iii) the second defendant pay the plaintiff's costs of the District Court proceedings; c) Order that the first respondent pay the appellant's costs of the appeal, and in respect of those costs to have a certificate under the Suitor's Fund Act, 1951 if otherwise entitled; d) Order that the appellant pay the second respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal; e) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the first respondent's contributory negligence; In CA 40129/03; a) Appeal allowed in part; b) Set aside the orders made by Norrish DCJ on 7 February 2003 and in lieu thereof order that; (i) there be judgment for the plaintiff against the first defendant and the second defendant in the sum of $20,779; (ii) as between the first and second defendants; · the first defendant to pay the plaintiff the amount of $9,350.55; · the second defendant to pay the plaintiff the amount of $11,428.45; (iii) first cross-claim be dismissed; (iv) there be judgment for the second cross-claimant as against the second cross-defendant in the sum of $12,870; (v) the first defendant pay the plaintiff's costs of the Local Court proceedings and of the District Court proceedings prior to the joinder of the second defendant; (vi) the first defendant pay 45% of the plaintiff's costs of the District Court subsequent to the joinder of the second defendant; (vii) the second defendant pay 55% of the plaintiff's costs of the District Court proceedings subsequent to the joinder of the second defendant; c) Order that the second respondent pay the appellant the amount of $10,964.48 plus interest in accordance with Schedule J for the period from 24 December 2003 to the date of this judgment; d) Order that the second respondent pay the appellant's costs of the appeal and, in respect of those costs, to have a certificate under the Suitor's Fund Act 1951, if otherwise entitled; e) Order that the appellant pay the first respondent's costs of the application for leave to appeal and the costs of his submitting appearance in the appeal; f) Liberty to apply within 7 days of the date of this judgment to amend these orders if they fail to accurately reflect the findings with respect to the second respondent's contributory negligence