Bojanic v Megally

[2023] NSWLC 9

Local Court

New South Wales

Medium Neutral Citation:

Bojanic v Megally [2023] NSWLC 9

Hearing dates:

12 August 2022 and 13, 14, 15 & 28 March 2023

Decision date:

25 August 2023

Jurisdiction:

Civil

Before:

Brender LCM

Decision:

Verdict in favour of the plaintiff for $7,000

Catchwords:

EVIDENCE — Opinion evidence — Exceptions — Expert opinion

Cases Cited:

Brits Inns Ltd v BDW Trading Ltd [2012] EWHC 2143

Dasreef Pty Ltd V Hawchar [2011] HCA 21

Fung v Stocavaz [2006] NSWSC 1345

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhemsen Agency Pty Ltd [2001] NSWCA 313

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305

Texts Cited:

Local Court of New South Wales, Practice Note Civ 1, Part E

Category:

Principal judgment

Parties:

John Megally
Andja Bojanic

Representation:

Plaintiff Counsel: K Young
Defendant Counsel: W Ritchie

File Number(s):

20201/00175446

JUDGMENT

1. The Plaintiff commenced proceedings in the Small Claims Division for damages arising from a motor vehicle accident caused by the defendant’s negligence. Paragraph 6 of the Statement of Claim pleaded that “...as a result of the collision they have suffered loss, damage expense and inconvenience (“loss and damage”)”. Paragraph 7 appears under the heading “Particulars of loss and damage” and says, “Due to the Collision caused by the Defendant, the Plaintiff suffered loss and damage (a) “Cost of Repairs $19,032.24””.

2. The defendant admitted negligence but denied paragraphs 6 and 7. He further pleaded that the plaintiff had not suffered actual damage in the form of the repairs specified in paragraph 7 and insofar as the claim is for the actual cost of repairs specified in paragraph 7, that claim is a sham. It was asserted that the plaintiff provided to the defendant a tax invoice (“invoice”) for the alleged amount of repairs, issued by a business trading under the name Accident Solutions Australia. The defendant has defined this invoice as “the false repair invoice”. It was alleged by the defendant that the vehicle was not repaired at Accident Solutions Australia on the dates referred to and gave particulars including an assertion that the repairs do not represent the loss or damage that the plaintiff has suffered.

Issues

3. These issues were said to be common to many other cases and the matter was transferred to the General Division of the Local Court. The matter was fixed for three days but it took longer than that. The resolution of this dispute lies in identifying the reasonable cost of repair as determined with the assistance of expert evidence.

4. There were Agreed Facts as to the collision, the liability for the collision, that the vehicle was repaired from 20 to 27 April 2021, that the repairs reinstated the vehicle to its pre-accident condition and that Accident Solutions Australia (ASA) created a tax invoice (invoice) shortly afterwards in the sum of $19,032.24.

5. The agreed issues were said to be as follows:

1. Do actual costs play any part in the assessment of…