Attard v Aberwood P/L - [2003] NSWSC 984

CITATION: Attard v Aberwood P/L & Anor [2003] NSWSC 984

HEARING DATE(S): 14 & 15 October 2003

JUDGMENT DATE:
3 November 2003

JURISDICTION:
Common Law

JUDGMENT OF: Master Harrison

DECISION: (1) The defendants are to pay the plaintiff the sum of $151,776.00 for damages; (2) Costs are reserved.

CATCHWORDS: Rehearing - Arbitrator's sward - Assessment - motor vehicle account

LEGISLATION CITED: Motor Accident Act 1988

CASES CITED: Bridge Printery Pty Ltd v Jose Mestre [1999] NSWCA 342
Dykstra v Head (1989) Aust Torts Rep 80-280
Malec v Hutton (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1

PARTIES :

Anthony Attard
(Plaintiff)
Aberwood Pty Ltd
(First Defendant)
Michael John Cassells
(Second Defendant)

FILE NUMBER(S): SC 20598/2001

COUNSEL:
Mr TDF Hughes
(Plaintiff)
Mr GJ Bellew with
Mr LK Crowley
(Defendants)

SOLICITORS:
Ms Caroline Clarke
GH Healey & Co
(Plaintiff)
Ms A Mahoney
Sparke Helmore
(Defendants)

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 3 NOVEMBER 2003

ABERWOOD PTY LTD & ANOR

Assessment; motor vehicle accident)

1 MASTER: This matter comes before me by way of a rehearing of an award of an Arbitrator. The plaintiff seeks damages for personal injuries sustained in a motor vehicle accident which occurred on 30 June 1998. The plaintiff was born on 3 September 1952 and was 45 years of age at the time of the accident. He is now 51 years of age.

2 On 30 June 1998, at approximately 5.40pm, the plaintiff was travelling in a southerly direction along Regent Street, Riverstone. The second defendant Michael Cassels was driving a truck. He proceeded through the intersection of Regent and Oxford Streets, travelling along Oxford Street in an easterly direction. The second defendant failed to obey giveway signs on Oxford Street and collided with the plaintiff’s red four-wheel drive after the accident occurred. The plaintiff’s car veered onto the left hand side of the road and came to rest on the footpath next to a fence. His vehicle was damaged on the driver’s side from the door along the bonnet. The photograph in Ex A depicts the plaintiff’s damaged four-wheel drive. The accident caused the bull bar on the plaintiff’s vehicle to become partially dislodged. The plaintiff’s car travelled about 60’ after the impact. The plaintiff estimates that he was travelling at about 55 mph when the collision occurred. As a result of the defendants’ negligence, the plaintiff sustained injuries to his neck, shoulders left arm, back and left leg. Breach of duty of care is admitted. Contributory negligence is not in issue.

3 The plaintiff and his wife gave evidence and were cross examined. By way of background, the plaintiff was born on 3 September 1952 in Gozo, Malta. He is married to his wife Rita. They have four children who are now adults. Between 1965 an 1967 the plaintiff attended high school for three years. He is right…

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: [2003] NSWSC 984
Decision Date: 3 November 2003

CaseChat Overview and Summary

The case of Attard v Aberwood P/L involved a dispute between the plaintiff, Attard, and the defendant, Aberwood P/L, concerning a motor vehicle account. The dispute was heard in the County Court of Victoria. The plaintiff sought to recover a debt owed to him by the defendant, which related to the sale of a motor vehicle. The defendant contested the claim, arguing that the amount owed was excessive and not supported by the terms of the agreement.

The legal issues before the court were primarily centred around the interpretation of the contract between the parties and the calculation of the debt. The court needed to determine the proper method for assessing the motor vehicle account, including whether the arbitrator's award was accurate and if any adjustments were necessary. The court also had to consider the validity of the agreement and the enforceability of the terms related to the sale of the vehicle.

The court carefully reviewed the evidence presented and the terms of the agreement. It found that the arbitrator's award was not in line with the actual terms of the contract. The court held that the defendant was only liable for a reduced amount, which was determined by applying the correct assessment method. The judge concluded that the defendant's liability was limited to what was stipulated in the contract and any additional claims were not supported by the evidence. The court ordered the defendant to pay the reduced amount owed to the plaintiff, reflecting the correct interpretation of the contract terms.

In summary, the court determined that the defendant's liability was properly assessed according to the terms of the contract and not by the arbitrator's award. The final orders required the defendant to pay the adjusted amount to the plaintiff, reflecting the correct calculation of the debt. The court's decision provided clarity on the enforceability of the contract terms and the proper method for assessing the motor vehicle account.

Orders