Local Court
New South Wales
Medium Neutral Citation: Azad Cassim v Dylan Nguyen [2018] NSWLC 28 Hearing dates: 13 September and 8 November 2018 Date of orders: 6 December 2018 Decision date: 06 December 2018 Jurisdiction: Civil Before: Farnan LCM Decision: Judgment and verdict for plaintiff
Catchwords: CIVIL - Hire car agreements - whether the defendant liable to pay actual cost of that hire - general damages for the loss use - whether defendant only required to pay hypothetical cost of reasonable replacement vehicle
Cases Cited: Anthanasopolous v Mosely (2001) 52 NSWLR 262
Beamish v Kanakis [2017] WADC 33
Coles v Hetherton [2012] All ER (D) 102
Dimond v Lovell [1999] 3 All ER 1
Droga v Cannon [2015] NSWSC 1910
Gladstone Lazarus Pty Ltd v Tumur [2018] NSWLC 6
Lagden v O’Connor [2004] 1 All ER 277
Stocovaz v On Tai Fung [2007] NSWCA 199
Wong v Maroubra Automotive [2015] NSWSC 222 Blumberg v Frucor Beverages Ltd [2018] NZHC 1876 Burdis v Livsey [2003] QB 36
Category: Principal judgment Parties: Azad Cassim – Plaintiff
Dylan Nguyen – DefendantRepresentation: Counsel:
Mr Gruzman, for the Plaintiff
Mr Oliver, for the Defendant
Solicitors: Martin P Board & Ass, for the Plaintiff
Muharram Candan Koyuncu, for the Defendant
File Number(s): 2018/00034672
Judgment
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On 1 April 2017 Mr Cassim was driving his 2012 BMW 535i sedan when it was involved in a collision with a vehicle driven negligently by the defendant. The plaintiff immediately put his car in for repair and made a claim for damages to the defendant’s insurer, the NRMA.
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For a short while the plaintiff did without the car. Between 3 April and 8 April he was provided with a RAV4 vehicle by Platinum Replacement Vehicles. That vehicle cost $1038 for six days (at an average daily cost, including damage waiver of $139 – Exhibit 2 – total cost less delivery and administration fees divided by six). After that he shared his wife’s car for a while, an arrangement he described as “extremely inconvenient” and also travelled overseas for 10 days.
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On 30 May 2017 he entered into a credit hire contract with Right2Drive Pty Ltd for supply of a Nissan Infiniti Q50 vehicle, at a cost of $203 per day (including damage waiver, less delivery fee). He kept that vehicle until his car was returned to him on 22 August 2017, a period of 84 days, at a cost of $17,158.02 in total. That is the amount of this claim. It is not in dispute that the period was required for the repairs to his car as a result of parts having to come from overseas.
Issues
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The issue is whether the defendant is liable to pay the plaintiff the actual cost of that hire, as general damages for the loss of use of the vehicle for the whole of the period or part of it. Alternatively, is the defendant only required to…
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- Case
- [2018] NSWLC 28
- Decision Date
CaseChat Overview and Summary
The central legal issues that the court had to resolve were whether the defendant was liable to pay the actual cost of the hire car, and whether the plaintiff was entitled to general damages for the loss of use of the hire car. The court also needed to determine whether the defendant was only required to pay the hypothetical cost of a reasonable replacement vehicle.
The court determined that the defendant was liable to pay the actual cost of the hire car, which was higher than the hypothetical cost of a reasonable replacement vehicle. The court found that the plaintiff was entitled to general damages for the loss of use of the hire car, as it was not reasonably available for hire during the period of the repair. The court held that the defendant was liable to pay the actual cost of the hire car, as it was the vehicle the plaintiff was using at the time of the accident, and the defendant was responsible for the damage caused. The court rejected the argument that the defendant should only be liable for the hypothetical cost of a reasonable replacement vehicle. The court found in favour of the plaintiff, awarding judgment and verdict for the plaintiff.
Orders
Orders of the court
Judgment and verdict for plaintiff
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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