Lloyd v Thornbury [2019] NSWCA 154

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Lloyd v Thornbury [2019] NSWCA 154 Hearing dates: 5 April 2019 Date of orders: 25 June 2019 Decision date: 25 June 2019 Before: Meagher JA at [1]; Gleeson JA at [2]; White JA at [183]. Decision: (1) Appeal allowed, in part, on damages and is otherwise dismissed.

(2) Set aside order 1 made by the District Court on 31 August 2018 and in place, order:

(a) Judgment for the plaintiff against the second defendant with damages to be assessed. (b) The plaintiff's claim against the first defendant is dismissed. (c) The plaintiff to pay the first defendant's costs of the proceedings. (d) The first cross-claim and the second cross-claim are each dismissed with no order as to costs.

(3) Remit the proceedings to the District Court for a rehearing on the assessment of damages.

(4) Order that the issue of damages be referred to mediation before any rehearing takes place on the assessment of damages in the District Court.

(5) Cross-appeal dismissed.

(6) The appellant (Mr Lloyd) pay 40 per cent of the costs of the first respondent (Mr Thornbury) in this Court, and to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of such costs if eligible.

(7) The appellant (Mr Lloyd) pay the costs of the second respondent (the Treuers) in this Court.

(8) Costs of the proceedings below as between Mr Thornbury and Mr Lloyd, including any application for a Bullock or Sanderson order, to abide the outcome of the rehearing on damages. Catchwords: TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury