P M SULCS v DAIHATSU AUSTRALIA PTY LTD [2008] NSWSC 683

New South Wales Supreme Court

CITATION : P M SULCS v DAIHATSU AUSTRALIA PTY LTD [2008] NSWSC 683

HEARING DATE(S) : 4 July 2008

JUDGMENT DATE : 8 July 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Kirby J

DECISION : (1) Order 6 of the orders made on 13 September 2001 is varied, so as to read as follows: "6. In respect of the possible tax liability of the plaintiff for the amount awarded for the loss of a chance ($1,211,900) and the interest thereon, the plaintiff should have leave to apply for additional damages in the event of it being assessed for income tax in respect of income which includes, as a component, the award of damages for loss of a chance and interest thereon." (2) Subject to that amendment, the plaintiff's Motion is dismissed (3) The plaintiff should pay 75 percent of the defendant's costs on this Motion.

CATCHWORDS : Practice & Procedure - leave reserved to apply if plaintiff assessed for tax on money awarded for loss of chance and interest in 2001 - whether power to amend - ambiguity - whether interlocutory.

LEGISLATION CITED : Income Tax Act, 1936 (Cth) Income Tax Act, 1997 (Cth)

CATEGORY : Consequential orders

CASES CITED : P M Sulcs v Daihatsu Aust - Costs and Interest [2001] NSWSC 798 Rabelais Pty Ltd v Cameron & Ors (unreported, 31 July 1995)

PARTIES : P M Sulcs & Associates Pty Ltd (Pl) Daihatsu Pty Ltd (Def)

FILE NUMBER(S) : SC 11489/93

COUNSEL : J Garnsey QC (Pl) N Hutley SC/M Izzo (Def)

SOLICITORS : Connah, Steed & Co (Pl) Clayton Utz (Def)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION