Ivancic v Zardo

[2004] ACTCA 11

ACT Court of Appeal

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Interrogate

Catchwords

1. Motor Accidents
2. › Fraudulent Claims
3. › Relief from liability under s 66 Motor Accidents Act 1988 (NSW)
1. Motor Accidents
2. › Fraudulent Claims
3. › Apportionment of financial benefit obtained by fraud
1. Judgments and Orders
2. › Consent Judgments
3. › Whether lump sum compromise settlement can be dissected for fraud relief
1. Judgments and Orders
2. › Costs
3. › Whether agreed costs form part of financial benefit subject to fraud relief

Quick Take

The ACT Court of Appeal held that s 66 of the Motor Accidents Act 1988 (NSW) permits apportionment of a lump sum consent judgment so that relief from liability is limited to the portion representing the financial benefit obtained by fraud, rejecting both the claimant's argument that the inability to apportion required dismissal and the insurer's argument that the entire lump sum was irrecoverable. The Court upheld the trial judge's assessment that $350,000 of a $425,000 consent judgment was attributable to fraud, leaving $75,000 as legitimately payable. The Court also held that the $30,000 agreed costs formed part of the financial benefit obtained by fraud and should be subject to relief, particularly given that a Calderbank offer of $145,000 would have precluded any costs order in favour of the claimant had the true extent of injuries been known.