Nau v Kemp & Associates [2010] NSWCA 164

Reported Decision: 77 NSWLR 687

New South Wales Court of Appeal

CITATION: Nau v Kemp & Associates [2010] NSWCA 164

HEARING DATE(S): 7 December 2009

JUDGMENT DATE: 12 July 2010

JUDGMENT OF: McColl JA at 1; Campbell JA at 113; Sackville AJA at 243

(1) Grant leave to appeal (2) Direct a notice of appeal, in the form contained in the white book, be filed within seven days DECISION: (3) Appeal allowed (4) Set aside the orders made in the District Court on 20 February 2009 in matter 4603 of 2005 (5) In lieu thereof, order that the Notice of Motion of each Respondent be dismissed with costs (6) Respondents to pay costs of the Appellant of the appeal, but to have a certificate under the Suitors Fund Act 1951 if qualified.

CATCHWORDS: TORTS – the law of torts generally – joint or several tortfeasors – contribution – general – effect of settlement against one tortfeasor – legislation preventing double recovery – purpose and effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – undercompensation irrelevant for purposes of operation of s5(1)(b) – TORTS – the law of torts generally – general principles – meaning of "damages awarded" in s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946– "damages awarded" extends only to circumstances where the court has assessed the quantum of those damages in the context of s5(1)(b) – TORTS – negligence – apportionment of responsibility and damages – principles and mode of apportionment – DAMAGES – measure and remoteness of damages in actions for tort – measure of damages – legislation limiting amount of damages available – effect of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – PROCEDURE – judgments and orders – effect of judgments – whether "damages awarded" extends to include judgments giving effect to settlement amongst parties for the purposes of s5(1)(b) Law Reform (Miscellaneous Provisions) Act 1946 – meaning of "damage" – WORDS AND PHRASES – "damage" – "damages awarded"