Serrao (by his tutor Serrao) v Cornelius [2017] NSWCA 61

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Serrao (by his tutor Serrao) v Cornelius [2017] NSWCA 61 Hearing dates: On the papers Decision date: 28 March 2017 Before: Leeming JA Sackville AJA Emmett AJA Decision: 1. Orders made by the primary judge on 13 February 2015 set aside. 2. Grounds 1-4 of the Amended Notice of Appeal filed in Court on 10 March 2016 dismissed. 3. Allow the appeal on Ground 5 of the Amended Notice of Appeal. 4. Cross appeal allowed. 5. In lieu of orders made by the primary Judge, the Court makes the following orders: (1) Judgment for the plaintiff on the cause of action pleaded under Part 1.2 Div 1 of the Motor Accidents (Compensation) Act 1999 (NSW) in the sum of $1,058,756.50 inclusive of fund management. (2) Proceedings are otherwise dismissed. (3) No order for the costs of the proceedings with the intent that each party bear his or her own costs. 6. Respondent to have credit for $74,578.18 in statutory deductions paid to Centrelink (in the sum of $73,064.53) and Medicare (in the sum of $1,513.65). 7. Respondent to have credit for $1,481,800.62 paid to the Office of the New South Wales Trustee & Guardian on 22 April 2015. 8. Appellant pay restitution in the sum of $497,622.30 to the respondent plus interest at the rates prescribed for the purposes of s 101 Civil Procedure Act 2005 (NSW) from and including 22 April 2015 to the date of payment. 9. There be no order as to the costs of the appeal and cross appeal, with the intent that each party bear his or her own costs of the appeal and the cross appeal. 10. The parties have liberty to apply on seven days' notice. Catchwords: DAMAGES – plaintiff under incapacity – compromise of component of damages representing costs of fund management – component relatively small and supported by evidence – compromise approved Legislation Cited: Civil Procedure Act 2005 (NSW), s 76(3) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298 Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 60; 75 MVR 58 Serrao (by his tutor Serrao) v Cornelius (No 2) [2016] NSWCA 231 Serrao (by his tutor Serrao) v Cornelius (No 3) [2016] NSWCA 293 Category: Consequential orders (other than Costs) Parties: Daniel Terrence Serrao by his tutor Alicia Serrao (Appellant) Claire Myfawny Cornelius (Respondent) Representation: Counsel: