Tsu v Nemeth & Anor [2012] NSWCA 29

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tsu v Nemeth & Anor [2012] NSWCA 29 Hearing dates: 07/11/2011 Decision date: 06 March 2012 Before: Beazley JA at 1 Whealy JA at 2 Handley AJA at 3 Decision: (1) Appeal by Mr Peter Tsu dismissed; (2) Cross appeal by Mr Anthony Nemeth as executor of the estate of the late Ferdinand Nemeth dismissed with no order as to costs; (3) Cross appeal by Piling Contractors (Qld) Pty Ltd (Piling) dismissed; (4) Prynew Pty Ltd (in liq) joined as a submitting respondent and cross respondent; (5) Prynew and Mr Peter Tsu jointly and severally to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of the appeal until 17 August 2011 when Prynew discontinued; (6) Mr Peter Tsu to pay Mr Anthony Nemeth's costs of the appeal after 17 August 2011; (7) Piling to pay the costs of Mr Ferdinand Nemeth and Mr Anthony Nemeth of its cross appeal and application for leave to cross appeal; (8) Judgment for Prynew against Mr Peter Tsu for 19%, and against Piling for 25% of the costs payable to the plaintiff under the orders of Macready AsJ of 20 July 2009; (9) Judgment for Mr Peter Tsu against Prynew for 56% and, against Piling for 25% of the costs payable to the plaintiff under the said orders; (10) Judgment for Piling against Prynew for 56% and against Mr Peter Tsu for 19% of the costs payable to the plaintiff under the said orders; (11) The judgments for contribution for and against Piling are subject to its right of set off against the plaintiff for the costs payable to it under Order 6 made by Macready AsJ on 20 July 2009; (12) The solicitors for the appellant are to promptly serve the liquidator of Prynew with a copy of these orders after they have been formally entered. Liberty for the liquidator of Prynew to apply, within 35 days of service on him of a copy of these orders as entered, to set aside Orders 8, 9, and 10 as against it; (13) No order as to the costs of Virginia Nemeth in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: CONCURRENT TORTFEASORS - damages - apportionment - separate judgments - Environmental Planning and Assessment Act s 109Z - Civil Liability Act s 35 - whether joint and several orders for costs appropriate. COSTS - concurrent tortfeasors - damages apportioned - whether joint and several orders for costs appropriate. PRACTICE - action referred for enquiry and report - report substantially adopted by Judge - final judgment not entered - application to re-open - new evidence in hearsay form - witness not available for cross examination - credibility not established - application dismissed. PRACTICE - new trial - fresh evidence - evidence of witness in hearsay form - witness not available for cross examination - court unable to assess credibility - application dismissed. Legislation Cited: Civil Liability Act, s 35 Civil Procedure Act, s 98 Environmental Planning and Assessment Act s 109Z Evidence Act, s 75 Cases Cited: Australian Iron and Steel Ltd v Greenwood [1962] HCA 32, 107 CLR 308, Cachia v Hanes [1994] HCA 14, 179 CLR 403 CDJ v VAJ [1998] HCA 76, 197 CLR 172 Croston v Vaughan [1938] 1 KB 540 CA. Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22, 209 CLR 478 Gundry v Sainsbury [1910] 1 KB 645 CA Gunston v Lawley [2008] VSC 97 McDonald v McDonald [1965] HCA 45, 113 CLR 529 RTA v Comerford [2001] NSWSC 293 Ryan v South Sydney Junior Rugby League Club Ltd [1975] 2 NSWLR 660 Rushcutters Bay Smash Repairs v H McKenzie Netmakers [2003] NSWSC 670 Smith v NSW Bar Association [1992] HCA 36, 176 CLR 256 Spiers v Caledonian Collieries Ltd (1956) 57 SR (NSW) 483 TPC v Nicholas Enterprises Pty Ltd (1979) 23 ALR 201 Category: Principal judgment Parties: Prynew Pty Ltd - 1st Appellant Peter Tsu - 2nd Appellant Anthony Nemeth - 1st Respondent Virginia Nemeth - 2nd Respondent QBE Mercantile Mutual Ltd - 3rd Respondent Piling Contractors (Qld) Pty Ltd - 4th Respondent - Cross appellant Representation: W Washington & B Palmer - Appellants DAC Robertson & HPJ Bevan - 1st Respondent G Inatey SC & S Kettle - 4th Respondent, Cross appellant Colin Biggers & Paisley - Appellants Gadens Lawyers - 1st Respondent Thompson Cooper Lawyers - 4th Respondent, Cross appellant File Number(s): 09/298275 Decision under appeal Citation: [2009] NSW SC 511 Date of Decision: 2008-02-26 00:00:00 Before: Macready AsJ File Number(s): SC 55019/03; SC 55037/03