Kolomaka v Allied Industrial Services Pty Ltd [2014] NSWSC 1294

Procedural Posture

Interlocutory Applications / Application for Court Approval of Settlement and Consent Orders Where Plaintiffs Are Minors

Legal Issues

1. 1 ['Whether the compromise of the proceedings should be approved under s 76 of the Civil Procedure Act 2005 (NSW) insofar as it concerned the minor plaintiffs.' "Whether the proposed apportionment of settlement moneys, including amounts payable under the Compensation to Relatives Act 1897 (NSW) and the girls' nervous shock claims, was appropriate." "Whether a deduction of $20,000 from each girl's nervous shock entitlement should be authorised under s 77 of the Civil Procedure Act 2005 (NSW) for unrecoverable solicitor and client costs."]

Ratio Decidendi

The settlement was approved because, after considering the medical, actuarial and other evidence, the confidential advice of counsel, the uncertainty of damages assessment and prognosis, the desirability of avoiding further trauma to the children, and the protective focus required by s 76, the proposed compromise and apportionment were appropriate for the minor plaintiffs. The $20,000 deduction from each girl's nervous shock entitlement was authorised because it was capped, subject to the solicitor's undertaking to comply with costs obligations and account for any surplus, and was appropriate under s 77.

Court Disposition

Compromise approved; consent judgment and orders made; authorised deduction for legal costs declared.

Orders

• ['The Court approved the agreement of the parties for compromise under s 76(4) of the Civil Procedure Act 2005 (NSW).' "Upon Mr Nikolovski's undertaking to comply with obligations under the Legal Profession Act 2004 (NSW) concerning costs payable by or on behalf of Lyniana, Saane and Taimani Kolomaka and to account...