Howarth v Tweed Shire Council [2013] NSWSC 1337

Supreme Court New South Wales

Medium Neutral Citation: Howarth v Tweed Shire Council [2013] NSWSC 1337 Hearing dates: 04/09/2013 Decision date: 04 September 2013 Jurisdiction: Common Law Before: Garling J Decision: (1) Pursuant to s 76(4) of the Civil Procedure Act 2005, I approve of the compromise reached between the plaintiff and each of the defendants. (2) I note that the compromise has been reached in circumstances where neither of the defendants admit they are liable to pay any sums to the plaintiff. (3) I order that there be judgment for the plaintiff against the first defendant in the sum set out in the consent judgment between the plaintiff and first defendant dated 4 September 2013. (4) I order the first defendant to pay the plaintiff's costs in the sum set out in term 2 of the consent judgment. (5) I note the first defendant has agreed to waive the benefit of the costs order made in its favour by the Court of Appeal on 28 April 2009. (6) I note the terms of paragraphs 4, 5, 6, 8 and 9 of the consent judgment between the plaintiff and the first defendant. (7) I note that pursuant to s 77(2) of the Civil Procedure Act 2005, the judgment sum is less the amount of $2,154.90 to be paid into Court. I note the first defendant is to be at liberty to deduct and pay from the judgment sum the amount of $2,154.90 so as to enable the payment of that sum to the Health Insurance Commission. (8) I order that there be a judgment for the second defendant. I make no order as to costs of the proceedings between the plaintiff and the second defendant. I note that the parties are agreed that these terms are not to be disclosed. (9) I make an order that the affidavits which have been relied upon, are to be placed in a sealed envelope and only opened by order of a judge of the Court. (10) By consent and without admission of liability, I order that the First Cross-Claim brought by Tweed Shire Council against the first cross-defendant, Mr Howarth, be dismissed. (11) I order that the Third Cross-Claim brought by Mr Howarth, as cross-claimant, against Tweed Shire Council, as cross-defendant, be dismissed. (12) I order Tweed Shire Council to pay Mr Howarth's costs in the sum of $50,000. (13) I order that no interest is to run on payment of those costs until twenty-eight days from the later of the following; (i) approval of the settlement by this Court between the plaintiff and the first defendant; or (ii) receipt by Tweed Shire Council's solicitor of an authority to receive. Note the parties are agreed that the terms are not to be disclosed. Catchwords: PROCEDURE - judgments and orders - application for approval of compromise - whether to approve terms of compromise in unique circumstances - damages agreed are not at, or near, high end of range - appropriate to approve terms of compromise in the interests of the plaintiff - no point of general principle. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Fairhurst v Fairhurst [2012] NSWSC 388. Yu Ge v River Island Clothing Pty Ltd [2002] NSWSC 28; (2002) Aus Torts Reports 81 - 638; Category: Procedural and other rulings Parties: Carly Eden Howarth (P) Tweed Shire Council (D1) Derek Howarth (D2) Representation: Counsel: R O'Keefe (P) N Scoble (D1) P R Manion (D2) Solicitors: Wilson & Co Lawyers (P) DLA Piper Australia (D1) Rankin Ellison Lawyers (D2) File Number(s): 2007/00265045