Dwyer v Browning [2011] NSWSC 445

Dwyer v Browning [2011] NSWSC 445

Because the defendant's breach of duty had been admitted, the plaintiffs would obtain judgment for substantial damages if the proceedings went to trial, no undue hardship was raised, and a further interim payment of $35,000 for in-school care would not exceed a reasonable proportion of the damages likely to be recovered, it was just to allow an interim payment limited to school care needs. An interim payment for building works was not appropriate at this stage given the unresolved arguments about the scope of recoverable additional costs under s 71 and the prospect of mediation or hearing.

Jurisdiction
Australia
Judgment Date
18 May 2011
Procedural Posture
Application for Interim Payment in Damages Proceedings / Interlocutory Application Before Trial
Outcome
Parties to bring in short minutes of order to give effect to the reasons, including an interim payment of $35,000 for in-school care needs.
Legal Topics
['interim Payment' 'failed Sterilisation Procedure' 'additional Costs of Rearing or Maintaining a Child With a Disability' 'reasonable Proportion of Likely Recoverable Damages']
['practice and Procedure' 'civil Liability' 'damages'] ['interim Payment' 'failed Sterilisation Procedure' 'additional Costs of Rearing or Maintaining a Child With a Disability' 'reasonable Proportion of Likely Recoverable Damages']

Case Brief

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Procedural Posture

Application for Interim Payment in Damages Proceedings / Interlocutory Application Before Trial

Legal Issues

  1. 1 ['Whether an interim payment should be ordered under s 82 of the Civil Procedure Act 2005.' 'Whether the proposed interim payment would exceed a reasonable proportion of the damages likely to be recovered by the plaintiffs.' 'Whether an interim payment should be made for commercial in-school care for Serge.' 'Whether an interim payment should be made for home modifications including another bathroom and extra bedroom.']

Ratio Decidendi

Because the defendant's breach of duty had been admitted, the plaintiffs would obtain judgment for substantial damages if the proceedings went to trial, no undue hardship was raised, and a further interim payment of $35,000 for in-school care would not exceed a reasonable proportion of the damages likely to be recovered, it was just to allow an interim payment limited to school care needs. An interim payment for building works was not appropriate at this stage given the unresolved arguments about the scope of recoverable additional costs under s 71 and the prospect of mediation or hearing.

Court Disposition

Parties to bring in short minutes of order to give effect to the reasons, including an interim payment of $35,000 for in-school care needs.

Orders

  • ['Parties within seven days to bring in short minutes of order to give effect to the reasons.' 'Short minutes to include directions for the further conduct of the matter on a case-managed basis.' 'The Court indicated it was just to make an order for an interim payment of $35,000.' 'The Court indicated that costs of...