Sutton v BE Australia WD Pty Ltd (No 5) [2017] NSWSC 1636

Sutton v BE Australia WD Pty Ltd (No 5) [2017] NSWSC 1636

The Court accepted the plaintiff's calculation of compensation and interest at $152,258.97, but held that $20,000 should be deducted for the settlement with the second defendant to reflect overlapping responsibility and avoid double recovery. Because the plaintiff had substantially succeeded and the monetary outcome was no less favourable than the unaccepted $40,000 plus costs offer, the first defendant should pay costs on an indemnity basis. A gross sum costs order was refused because the material was insufficient to assess a fair gross sum and the other factors did not overcome that difficulty.

Jurisdiction
Australia
Judgment Date
28 November 2017
Procedural Posture
Unfair Contract Proceedings Under S 106(1) and (5) of the Industrial Relations Act 1996 (nsw) / Ex Parte Determination Against the First Defendant of Quantification of Compensation and Interest, Deduction for Settlement With the Second Defendant, Costs, and Directions for Final Orders
Outcome
Plaintiff to file short minutes of order reflecting the judgment; indemnity costs to be as agreed or, failing agreement, as assessed; gross sum costs order refused.
Legal Topics
['unfair Contract' 'ex Parte Proceedings' 'settlement Deduction' 'indemnity Costs' 'gross Sum Costs Order' 'interest']
['employment Law' 'industrial Law' 'civil Procedure' 'costs'] ['unfair Contract' 'ex Parte Proceedings' 'settlement Deduction' 'indemnity Costs' 'gross Sum Costs Order' 'interest']

Case Brief

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Procedural Posture

Unfair Contract Proceedings Under S 106(1) and (5) of the Industrial Relations Act 1996 (nsw) / Ex Parte Determination Against the First Defendant of Quantification of Compensation and Interest, Deduction for Settlement With the Second Defendant, Costs, and Directions for Final Orders

Legal Issues

  1. 1 ['What compensation and interest should be quantified following the findings that the arrangement was unfair and harsh.' 'What amount should be deducted to account for the settlement with the second defendant and avoid double recovery.' "Whether the first defendant should pay the plaintiff's costs on an indemnity basis because the judgment was no less favourable than the plaintiff's settlement offer." 'Whether a gross sum costs order should be made.']

Ratio Decidendi

The Court accepted the plaintiff's calculation of compensation and interest at $152,258.97, but held that $20,000 should be deducted for the settlement with the second defendant to reflect overlapping responsibility and avoid double recovery. Because the plaintiff had substantially succeeded and the monetary outcome was no less favourable than the unaccepted $40,000 plus costs offer, the first defendant should pay costs on an indemnity basis. A gross sum costs order was refused because the material was insufficient to assess a fair gross sum and the other factors did not overcome that difficulty.

Court Disposition

Plaintiff to file short minutes of order reflecting the judgment; indemnity costs to be as agreed or, failing agreement, as assessed; gross sum costs order refused.

Orders

  • ['The appropriate compensation and interest before settlement deduction is $152,258.97.' 'An appropriate deduction for the settlement against the second defendant is $20,000.' "The first defendant is to pay the plaintiff's costs on an indemnity basis, as agreed or in default of agreement as assessed." 'No gross sum...