Than v Galletta & Ors [2019] NSWDC 9

District Court New South Wales

Medium Neutral Citation: Than v Galletta & Ors [2019] NSWDC 9 Hearing dates: 9, 10, 11 July, 16 & 17 August 2018, 1 February 2019 Date of orders: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict and judgment for the plaintiff against each of the defendants, in the sum of $333,006.65;

2. On the first cross-claim, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the sixth and seventh defendants are to bear one hundred per cent of the plaintiff's damages and the first, second, third, fourth and fifth defendants are to bear zero per cent of the plaintiff's damages;

3. The second cross-claim is dismissed;

4. The defendants are to pay the plaintiff's costs of her action;

5. The sixth and seventh defendants are to indemnify the first, second, third, fourth and fifth defendants for costs liability those defendants have to the plaintiff;

6. The sixth and seventh defendants are to pay the costs of the first cross-claim brought by the first, second, third, fourth and fifth defendants;

7. The sixth and seventh defendants are to pay the costs of the first, second, third, fourth and fifth defendants on the second cross-claim;

8. All costs payable are to be assessed on the ordinary basis unless a party can show an entitlement to some other costs order;

9. The exhibits are to be returned;

10. Liberty to apply on 7 days notice if further or other orders are required, including as to costs. Catchwords: TORTS – negligence – occupier's liability – plaintiff fell whilst descending an unlit stairwell in common area of residential rental premises – proceedings against owners and managing agents – whether there was inherent risk of harm within the meaning of s 5I of the Civil Liability Act 2002 – whether there was an obvious risk within the meaning of s 5F of that Act – whether defendants were negligent – whether plaintiff was contributorily negligent – apportionment of liability between defendants on cross-claims pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946; DAMAGES – assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, Pt 1A Div 2, s 5B, s5C, s 5D, s 5E, s 5F, s 5G, s 5I, s 5R, s 5S, s 13 Evidence Act 1995, s 60 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Residential Tenancies Act 2010, s 63 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Amoud v Al Batat [2009] NSWCA 333 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Avopiling Pty Ltd v Bosevski [2018] NSWCA 146 Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16 Bonitto v Fuerst Bros & Co Ltd [1944] AC 75 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA139 Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Hall v State of New South Wales [2014] NSWCA 154 Laresu Pty Ltd v Clark [2010] NSWCA 180 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 Penrith City Council v Parks [2004] NSWCA 201 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42 St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 Vairy v Wyong shire Council (2005) 223 CLR 442; [2005] HCA 62 Category: Principal judgment Parties: Karen Than (Plaintiff) Sheila Elizabeth Galletta (First defendant) Joan Maria Ghisla (Second defendant) Margaret Rachel Stanton (Third defendant) Kathryn Anne Calabrese (Fourth defendant) Josephine Gloria Lombardo (Fifth defendant) Adrian Tesoriero t/as LJ Hooker Bondi Beach (Sixth defendant) AP Tesoriero t/as LJ Hooker Bondi Beach (Seventh defendant) Representation: Counsel: Mr K Andrews with Mr R Brown (Plaintiff) Mr P Nolan (Defendants 1 – 5, First cross-claimants) Mr J Sheller (Defendants 6 – 7, Second cross-claimants)