A2B Car Rentals Pty Ltd v Terkmas - [2016] NSWLC 23

Local Court

New South Wales

Medium Neutral Citation: A2B Car Rentals Pty Ltd v Terkmas [2016] NSWLC 23
Hearing dates: 10 November 2016
Decision date: 30 November 2016
Jurisdiction: Civil
Before: Assessor Olischlager
Decision:
Verdict and judgment for the plaintiff in the sum of $39.45 together with court costs of $254.00 and professional costs on issue of the claim in the sum of $415.00. Plaintiff to pay costs of hearing in the sum of $944.00. Costs order of hearing set off against judgment under section 96 of the Civil Procedure Act 2005. Payable within 28 days.

Catchwords: CIVIL PROCEEDINGS – small claims – motor vehicle accident – damages - loss of use - income producing chattels - claim by corporation - assessment of damages based on market rate for replacement - need for replacement
Cases Cited: Anthanasopoulos v Moseley [2001] NSWCA 266; (2001) 52 NSWLR 262
Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2010] EWCA Civ 647
BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors [2008] QSC 141
Consort Express Lines Limited v J-Mac Pty Ltd (No2) [2006] FCA 833
Dimond v Lovell [2002] 1 AC 384
Gardiner v Metcalf [1994] 2 NZLR 8
Lagden v O’Connor [2002] EWCA Civ 510
SS Strathfillan v SS Ikala [1929] AC 196
The Greta Holme [1897] AC 596
The Hebridean Coast [1961] AC 545
West Midlands Travel Ltd v Aviva Insurance UK Ltd [2013] EWCA Civ 887
Woodman v Rasmussen [1953] St R Qd 202
WR Building & Maintenance Pty Ltd v Jones [2016] NSWLC 13
Zappulla v Perkins [1978] Qd R 92
Category: Principal judgment
Parties: A2B Car Rentals Pty Ltd (plaintiff)
Con Terkmas (defendant)
Representation: Solicitors:
U Danielian (for the plaintiff)
C Jaramillo (for the defendant)

File Number(s): 2016/00112430

Judgment

On 10 November 2016 the Court gave judgment in favour of the plaintiff in the sum of $39.45. The plaintiff’s claim was for an amount of $1,596.80 for loss of use of its motor vehicle while it was being repaired as a consequence of a collision caused by the defendant. The claim was calculated by reference to a market rate for hiring a replacement motor vehicle while repairs were being carried out. The Court assessed damages for loss of use of the plaintiff’s vehicle in the sum of $39.45. This amount was determined by reference to interest calculated on the capital value of the plaintiff’s vehicle during the period of loss. The Court reserved the reasons for its decision so that they could be reduced to writing. Those reasons now follow.
The plaintiff is a corporation which operates a business hiring motor vehicles to the public. The plaintiff was the owner and registered operator of a 2009 Toyota Camry. The motor vehicle was used for business purposes by the company. Mr Pillay, the director of the plaintiff, gives evidence that the motor vehicle was used by him primarily for work purposes. He also used the motor vehicle for personal purposes. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWLC 23
Decision Date: 30 November 2016

CaseChat Overview and Summary

A2B Car Rentals Pty Ltd sought damages from Terkmas in the Local Court of New South Wales following a motor vehicle accident that resulted in damage to a rental car. The plaintiff claimed damages for the loss of use of the vehicle, which was an income-producing chattel. The defendant, Terkmas, did not dispute liability for the accident but contested the amount of damages claimed by the plaintiff.

The primary legal issue before the court was the appropriate method for assessing damages for the loss of use of an income-producing chattel. The plaintiff argued that the damages should be calculated based on the market rate for replacement of the vehicle, while the defendant contended that the damages should reflect the actual loss suffered by the plaintiff. The court had to determine which approach was more appropriate in this context.

In its judgment, the court found that the damages for the loss of use of the vehicle should indeed be calculated based on the market rate for replacement. The court noted that the vehicle was an income-producing chattel, and therefore, the loss of use should be assessed by reference to what it would cost the plaintiff to replace the vehicle with an equivalent one. The court also considered that the vehicle had already been repaired and was back in service, which further supported the market rate for replacement approach. The court assessed the loss of use at $39.45, which was the amount the plaintiff had claimed.

The court ordered that judgment be entered in favour of the plaintiff for $39.45, along with costs of $254.00 for the issue of the claim, $415.00 for professional costs on the issue of the claim, and $944.00 for costs of the hearing. The costs order for the hearing were to be set off against the judgment under section 96 of the Civil Procedure Act 2005, meaning the plaintiff would only need to pay $659.00 of the total costs. The defendant was ordered to pay the judgment amount within 28 days.

Orders

Orders of the court

Verdict and judgment for the plaintiff in the sum of $39.45 together with court costs of $254.00 and professional costs on issue of the claim in the sum of $415.00. Plaintiff to pay costs of hearing in the sum of $944.00. Costs order of hearing set off against judgment under section 96 of the Civil Procedure Act 2005. Payable within 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	A2B Car Rentals Pty Ltd v Terkmas [2016] NSWLC 23
Hearing dates:	10 November 2016
Decision date:	30 November 2016
Jurisdiction:	Civil
Before:	Assessor Olischlager
Decision:	Verdict and judgment for the plaintiff in the sum of $39.45 together with court costs of $254.00 and professional costs on issue of the claim in the sum of $415.00. Plaintiff to pay costs of hearing in the sum of $944.00. Costs order of hearing set off against judgment under section 96 of the Civil Procedure Act 2005. Payable within 28 days.
Catchwords:	CIVIL PROCEEDINGS – small claims – motor vehicle accident – damages - loss of use - income producing chattels - claim by corporation - assessment of damages based on market rate for replacement - need for replacement
Cases Cited:	Anthanasopoulos v Moseley [2001] NSWCA 266; (2001) 52 NSWLR 262 Beechwood Birmingham Ltd v Hoyer Group UK Ltd [2010] EWCA Civ 647 BHP Coal Pty Ltd and Ors v O & K Orenstein & Koppel AG and Ors [2008] QSC 141 Consort Express Lines Limited v J-Mac Pty Ltd (No2) [2006] FCA 833 Dimond v Lovell [2002] 1 AC 384 Gardiner v Metcalf [1994] 2 NZLR 8 Lagden v O’Connor [2002] EWCA Civ 510 SS Strathfillan v SS Ikala [1929] AC 196 The Greta Holme [1897] AC 596 The Hebridean Coast [1961] AC 545 West Midlands Travel Ltd v Aviva Insurance UK Ltd [2013] EWCA Civ 887 Woodman v Rasmussen [1953] St R Qd 202 WR Building & Maintenance Pty Ltd v Jones [2016] NSWLC 13 Zappulla v Perkins [1978] Qd R 92
Category:	Principal judgment
Parties:	A2B Car Rentals Pty Ltd (plaintiff) Con Terkmas (defendant)
Representation:	Solicitors: U Danielian (for the plaintiff) C Jaramillo (for the defendant)
File Number(s):	2016/00112430