Karabay v Carr [2014] NSWCA 143

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Karabay v Carr [2014] NSWCA 143 Hearing dates: 23 April 2014 Decision date: 08 May 2014 Before: McColl JA at [1]; Gleeson JA at [2]; Sackville AJA at [111] Decision: 1. Appeal allowed in part. 2. Set aside order 4 made by Hidden J on 27 June 2013 and in lieu thereof order the first defendant to pay the plaintiff's costs of the proceedings on an ordinary basis. 3. Set aside order 6 made by Hidden J on 27 June 2013 and in lieu thereof order the plaintiff to pay the second defendant's costs of the proceedings on an ordinary basis. 4. The appellant pay 90% of the first respondent's costs of the appeal. 5. The appellant pay the second respondent's costs of the appeal. [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: COSTS - Where Offer of Compromise made - Uniform Civil Procedure Rules r 20.26 - Offer of Compromise stated to be "plus costs" - Impact of decision in Whitney v Dream Developments Pty Ltd - Offer of Compromise not valid under the rules COSTS - General Rule - Costs follow the Event - Uniform Civil Procedure Rules r 42.1 - Determining the "event" or an "admission" - Principles considered in Ziliotto v Hakim DAMAGES - General Principles - Past and Future Economic Loss - Assessment of reasonable prospects of employment at date of notional trial - Assessment of residual earning capacity - Relevance of evidence relating to subsequent events PROFESSIONAL NEGLIGENCE - Proceedings against two solicitors - Dismissal of District Court proceedings for personal injury - One solicitor found liable Professional Negligence - Whether Court erred in finding the other solicitor not liable Legislation Cited: Civil Procedure Act 2005 s 98 District Court Rules 1973 Pt 1 r 7A, Pt 18 r 3 Uniform Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 r 20.26, r 42.1, r 42.25 Cases Cited: Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Firth v Sutton [2010] NSWCA 90 Johnson v Perez [1988] HCA 64; 166 CLR 351 Karabay v Malcolm Carr (t/as Forshaws Neill Solicitors) & Anor [2012] NSWSC 1386 Karabay v Malcolm Carr (t/as Forshaws Neill Solicitors) (No 2) [2013] NSWSC 773 Karabay v Torrac Nominees Pty Ltd (DCNSW, Duck DCJ, 22 March 2006, unreported) Metwally v University of Wollongong (No 2) [1985] HCA 28; 60 ALR 68 Old v McInnes [2011] NSWCA 410 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Torrac Nominees Pty Ltd v Karabay; UWS Macarthur Sports and Recreation Assn Inc v Karabay [2007] NSWCA 96 Vieira v O'Shea (No 2) [2012] NSWCA 121 Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Whitney v Dream Developments Pty Ltd [2013] NSWCA 188 Ziliotto v Hakim [2013] NSWCA 359 Category: Principal judgment Parties: Sadi Mustafa Karabay (Appellant) Malcolm Carr (trading as Forshaws Neill Solicitors) (First Respondent) Ron Egon Kramer (trading as Ron Kramer Associates) (Second Respondent) Representation: Counsel: D J Campbell QC with L Stephens (Appellant) P Braham SC with P O'Dea (Respondents) Solicitors: Paul Clough (Appellant) Yeldham Price O'Brien Lusk (Respondents) File Number(s): 2013/212117 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 1386 Date of Decision: 2012-11-07 00:00:00 Before: Hidden J File Number(s): 2008/289658