Tsu v Nemeth & Anor [2012] NSWCA 29

Tsu v Nemeth & Anor [2012] NSWCA 29

The appeal to reopen the reference was correctly dismissed as the new evidence was only hearsay, not credible, and would not have produced a different result; s 109Z does not require apportionment of costs, only damages, thus joint and several cost orders against all defendants were appropriate as all issues were interlinked and costs were incurred in proving the case against all; the trial judge's discretionary decisions on offers of compromise and costs were not shown to be in error.

Parties
1st Appellant: Prynew Pty Ltd; 2nd Appellant: Peter Tsu; 1st Respondent: Anthony Nemeth; 2nd Respondent: Virginia Nemeth; 3rd Respondent: QBE Mercantile Mutual Ltd; 4th Respondent Cross Appellant: Piling Contractors (Qld) Pty Ltd
Jurisdiction
Australia
Judgment Date
06 March 2012
Procedural Posture
Civil Appeal / Appeal and Cross Appeal Determination
Outcome
Appeal dismissed; Cross-appeals dismissed; Various costs and contribution orders made
Legal Topics
Concurrent Tortfeasors, Apportionment of Damages, Costs, Fresh Evidence, Referee’s Report, Contribution
Tort Law Civil Procedure Concurrent Tortfeasors Apportionment of Damages Costs Fresh Evidence Referee’s Report Contribution

Case Brief

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Parties

Prynew Pty Ltd

1st Appellant

Peter Tsu

2nd Appellant

Anthony Nemeth

1st Respondent

Virginia Nemeth

2nd Respondent

QBE Mercantile Mutual Ltd

3rd Respondent

Piling Contractors (Qld) Pty Ltd

4th Respondent Cross Appellant

Procedural Posture

Civil Appeal / Appeal and Cross Appeal Determination

Legal Issues

  1. 1 Whether the trial judge erred in refusing to re-open the reference on the basis of fresh evidence
  2. 2 Whether s 109Z of the Environmental Planning and Assessment Act required apportionment of costs as well as damages
  3. 3 Appropriateness of joint and several orders for costs against concurrent tortfeasors

Ratio Decidendi

The appeal to reopen the reference was correctly dismissed as the new evidence was only hearsay, not credible, and would not have produced a different result; s 109Z does not require apportionment of costs, only damages, thus joint and several cost orders against all defendants were appropriate as all issues were interlinked and costs were incurred in proving the case against all; the trial judge's discretionary decisions on offers of compromise and costs were not shown to be in error.

Court Disposition

Appeal dismissed; Cross-appeals dismissed; Various costs and contribution orders made

Orders

  • Appeal by Mr Peter Tsu dismissed
  • Cross appeal by Mr Anthony Nemeth as executor of the estate of the late Ferdinand Nemeth dismissed with no order as to costs