Bjelecic v Lawcover Insurance Pty Limited [2016] NSWDC 152

Bjelecic v Lawcover Insurance Pty Limited [2016] NSWDC 152

The entered JusticeLink orders had to be corrected because they did not accurately reflect Delaney DCJ's reasons, which found the claim against the second defendant statute-barred and intended judgment against Lawcover only. The defendants were entitled to indemnity costs from 17 April 2015 because the plaintiff failed to accept a valid $85,000 offer that exceeded the judgment sum and the issues were not so complex as to make rejection reasonable. The plaintiff's proposed damages variation could not proceed under UCPR r 36.16 because it was out of time, and could not proceed under the slip rule because the proposed changes concerned substantive damages assessment, factual and legal...

Jurisdiction
Australia
Judgment Date
09 March 2016
Procedural Posture
Civil; Procedural and Other Rulings / Post Judgment Applications Under UCPR Rr 36.16 and 36.17 to Correct Entered Orders, Determine Indemnity Costs, and Address a Proposed Plaintiff Application to Amend Damages Calculations
Outcome
JusticeLink orders vacated and corrected; judgment entered for the second defendant against the plaintiff; judgment entered for the plaintiff against the first defendant for $51,431; ordinary and indemnity costs orders made; plaintiff no longer pressed the balance of the proposed notice of motion to vary damages.
Legal Topics
['slip Rule' 'variation or Setting Aside of Judgment or Order' 'justice Link Entry of Orders' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'limitation Period' 'loss of a Chance Damages']
['practice and Procedure' 'civil Procedure' 'costs' 'professional Negligence'] ['slip Rule' 'variation or Setting Aside of Judgment or Order' 'justice Link Entry of Orders' 'indemnity Costs' 'calderbank Offer' 'offer of Compromise' 'limitation Period' 'loss of a Chance Damages']

Case Brief

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Procedural Posture

Civil; Procedural and Other Rulings / Post Judgment Applications Under UCPR Rr 36.16 and 36.17 to Correct Entered Orders, Determine Indemnity Costs, and Address a Proposed Plaintiff Application to Amend Damages Calculations

Legal Issues

  1. 1 ["Whether the JusticeLink orders and the trial judge's orders should be corrected to enter judgment for the plaintiff only against the first defendant and judgment for the second defendant against the plaintiff." 'Whether the defendants should receive indemnity costs from 17 April 2015 because the plaintiff failed to accept an $85,000 offer of compromise also relied on as a Calderbank offer.' "Whether the plaintiff could use UCPR rr 36.16 or 36.17 to vary the damages figure from $51,431 to a higher amount based on asserted mathematical and factual errors in the trial judge's reasons."]

Ratio Decidendi

The entered JusticeLink orders had to be corrected because they did not accurately reflect Delaney DCJ's reasons, which found the claim against the second defendant statute-barred and intended judgment against Lawcover only. The defendants were entitled to indemnity costs from 17 April 2015 because the plaintiff failed to accept a valid $85,000 offer that exceeded the judgment sum and the issues were not so complex as to make rejection reasonable. The plaintiff's proposed damages variation could not proceed under UCPR r 36.16 because it was out of time, and could not proceed under the slip rule because the proposed changes concerned substantive damages assessment, factual and legal...

Court Disposition

JusticeLink orders vacated and corrected; judgment entered for the second defendant against the plaintiff; judgment entered for the plaintiff against the first defendant for $51,431; ordinary and indemnity costs orders made; plaintiff no longer pressed the balance of the proposed notice of motion to vary damages.

Orders

  • ['Vacate the JusticeLink order dated 16 December 2015 for the first and second defendants to pay the judgment sum of $51,431.' "In accordance with paragraph 35 of Delaney DCJ's reasons, enter judgment in favour of the second defendant against the plaintiff." 'Judgment for the plaintiff for $51,431 against the first...