Zraika v Walsh (No 2) [2014] NSWSC 655

Supreme Court New South Wales

Medium Neutral Citation: Zraika v Walsh (No 2) [2014] NSWSC 655 Hearing dates: 9 May 2014 Decision date: 23 May 2014 Before: Schmidt J Decision: 1. Pursuant to s 82 of the Civil Procedure Act the first and second defendants pay to the plaintiff the sum of $400,000 by way of an interim payment of the damages sought to be recovered in the proceedings. 2. That this interim payment be credited against any settlement or verdict obtained by the plaintiff against the first and second defendants and that it be repaid by the plaintiff if the proceedings against them are unsuccessful. The usual order as to costs is that they follow the event, which would be an order that the first and second defendants bear the costs of the motion as agreed or assessed. If the parties wish to be heard they should approach within 7 days, otherwise that will be the Court's order. Catchwords: PROCEDURE - notice of motion - order sought under s 82(1) of the Civil Procedure Act 2005 (NSW) against the first and second defendants for interim payment of part of the damages and to which plaintiff claims to be entitled - whether such an order should be entertained - medical causation in issue - no expert advice obtained by first and second defendants as yet - whether judgment for substantial damages would be obtained if proceedings go to trial - orders made Legislation Cited: Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dang v Chea [2013] NSWCA 80; (2013) 63 MVA 240 Forster v Hunter New England Area Health Service [2010] NSWCA 106; (2010) NSWLR 495 Sargent v South Western Area Health Service [2010] NSWSC 1506 Category: Interlocutory applications Parties: Sharif Zraika by his tutor Halima Zraika (Plaintiff) Rebecca Jane Walsh (First Defendant) Joseph Bernard Walsh (Second Defendant) Roads and Maritime Services (Third Defendant) Bankstown City Council (Fourth Defendant) Ali Zraika (Fifth Defendant) Representation: Counsel: Mr D Higgs SC with T Boyd (Plaintiff) Mr D Newell (First, Second and Fifth Defendants) Solicitors: Kheir Lawyers (Plaintiff) McInnes Wilson Lawyers NSW (First and Second Defendants) File Number(s): 2011/52630 Publication restriction: None