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Breadner v Hall

Breadner v Hall

Case [2018] NSWLC 10 15 June 2018

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Local Court

New South Wales

Medium Neutral Citation: Breadner v Hall [2018] NSWLC 10
Hearing dates: 18 May 2018
Decision date: 15 June 2018
Jurisdiction: Civil
Before: Assessor Olischlager
Decision:
Verdict for the defendant.

Catchwords: DAMAGES - Motor vehicle collision - assessment of damages - diminution of value - plaintiff seeks award for diminution of value in addition to the cost of repairs – assessment of diminution
Legislation Cited: Evidence Act 1995 s 79
Motor Dealers Act 1974 (repealed) s 24(7)
Motor Dealers and Repairers Act 2013 s 63
Motor Dealers and Repairers Regulation 2014 Sch 2 Form 5
Cases Cited: Burgoyne v BGC (Australia) Pty Ltd (1998)19 SR (WA) 101
Coles v Hetherton [2015] 1 WLR 160
Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611
Evans v Balog [1976] 1 NSWLR 36
Iconic Group Australia Pty Limited v Mirak-Ardestani (Unreported, Local Court of NSW, Bradd LCM, 8 March 2018)
Johnson v Perez (1988)166 CLR 35; [1988] HCA 64
Livingstone v Rawyards Coal Co (1880) 5 App Cas. 25
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Payton v Brooks [1974] RTR 169
Port Stephens Shire Council v Tellamist P/L [2004] NSWCA 353
Purnell Motors Pty Ltd v Commission for Fair Trading [2007] NSWSC 19
Re Arnotts Limited; Arnotts Biscuits Limited; Fledspac Limited and the Dickens Corporation Pty Limited v Trade Practices Commission (1990) 97 ALR 555/2; [1990] FCA 473
Rolleston v Insurance Australia Ltd [2017] NSWCA 168
Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349
Spencer v The Commonwealth (1907) 5CLR 418; [1907] HCA 82
State of NSW v Bitsikas; State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463
Category: Principal judgment
Parties: Jessica Breadner (Plaintiff)
Terry Hall (Defendant)
Representation:
Counsel:

J de Greenlaw (for Plaintiff)
Solicitors:
Z Hiamanek (for Plaintiff)
M C Koyuncu (for Defendant)

File Number(s): 2017/00193703
Publication restriction: Nil

Judgment

The plaintiff, Ms Breadner, was the owner of a 2014 BMW X5 sDrive 25D which was damaged in a collision on 1 August 2016 that was caused by the negligence of the defendant.
Ms Breadner’s motor vehicle has been repaired and the insurer of the defendant’s motor vehicle has settled Ms Breadner’s claim for the cost of repairs to the motor vehicle.
The only issue in dispute is whether Ms Breadner is entitled to an award of damages for diminution to the value of her motor vehicle, notwithstanding, that the motor vehicle has been repaired.
Ms Breadner claims that in addition to the cost of repairs, she suffered a loss being diminution in the value of her motor vehicle in the sum of $10,000. The defendant disputes any diminution in value has been suffered after the repair of the motor vehicle.

Facts

In a statement dated 17 April 2018 Ms Breadner deposes that she purchased the 2014 BMW X5 sDrive 25D Wagon for “approximately $95,000 plus on-road costs” from Sylvania BMW on 1 June 2015. At…

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.

Continue reading Breadner v Hall

Details

AGLC: Breadner v Hall [2018] NSWLC 10
Case: [2018] NSWLC 10
Decision Date: 15 June 2018

CaseChat Overview and Summary

The parties involved in the case were Breadner, the plaintiff, and Hall, the defendant. The dispute arose from a motor vehicle collision where the plaintiff sought an award for the diminution of value of their vehicle, in addition to the cost of repairs. The case was heard in the relevant Australian court. The central legal issue was whether the plaintiff was entitled to an award for the diminution of value of their vehicle, beyond the cost of repairs, in the event of a motor vehicle collision.

The court had to determine the correct approach to assessing damages for diminution of value in such circumstances. The court examined relevant case law and considered the principles governing the assessment of damages in motor vehicle collisions. The court concluded that the plaintiff was not entitled to an additional award for the diminution of value of their vehicle, as the cost of repairs already adequately compensated for the loss suffered.

The reasoning of the court was based on the principle that damages should be sufficient to put the plaintiff in the same position they would have been in had the collision not occurred. The court held that the cost of repairs to the vehicle was sufficient to compensate the plaintiff for the diminution of value, as it represented the market value of the vehicle at the time of the collision. The court found in favour of the defendant, concluding that the plaintiff was not entitled to an additional award for the diminution of value of their vehicle.

As a result of the court's decision, the defendant was found not liable for the additional award sought by the plaintiff. The court's verdict was in line with established principles of damages in motor vehicle collisions, and the plaintiff was not awarded any additional damages for the diminution of value of their vehicle.

Orders

Orders of the court

Verdict for the defendant.

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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Actions

Citations

Breadner v Hall [2018] NSWLC 10

Cases Citing This Decision

No citing cases yet.

Cases Cited

Rolleston v Insurance Australia Ltd [2017] NSWCA 168
Citation 1

…imited and the Dickens Corporation Pty Limited v Trade Practices Commission (1990) 97 ALR 555/2; [1990] FCA 473 Rolleston v Insurance Australia Ltd [2017] NSWCA 168 Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349 Spencer v The Commonwealth (1907) 5CLR 418; [1907] HCA 82 State of NSW v Bitsikas; State o…
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Citation 2 (Para 80)

…In Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 at [622] the High Court stated:…
State of NSW v Bitsikas & State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773
Citation 3 (Para 42)

…In State of NSW v Bitsikas; State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773 involved proceedings where a Local Court magistrate awarded an amount for diminution in value after repairs were carried. Although the appeal against the decision was upheld on other grounds, no criticism was made in respect to the re…
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463
Citation 4 (Para 44)

…In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 Palmer J was dealing with the assessment of damages arising from the negligent repair of a luxury game fishing vessel known as the “Eagle”. Although appropriate steps had been taken to replace the engines to reinstate the vessel the plaintiff claimed the sum…
Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349
Citation 5 (Para 43)

…In Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349 Nicholas J considered the obiter comments in both Coles v Hetherton and Payton v Brooks and concluded:…
Purnell Motors Pty Limited v Commissioner for Fair Trading [2007] NSWSC 19
Citation 6 (Para 66)

…ation upon motor vehicle dealers to make disclosures to prospective purchasers was considered in Purnell Motors Pty Ltd v Commission for Fair Trading [2007] NSWSC 19. In that case Davies J was dealing with an appeal against an adverse determination by the Commissioner against the motor vehicle dealer for failure t…
John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164
Citation 7 (Para 33)

…are measured by either the amount of diminution in the value of the property or by the cost of reinstatement of the property. In Evans v Balog [1976] 1 NSWLR 36 Samuels JA said at 39-40:…
Port Stephens Shire Council v Tellamist Pty Ltd [2004] NSWCA 353
Citation 8 (Para 47)

…onstitutes appropriate evidence to establish diminution in value was considered by the Court of Appeal in Port Stephens Shire Council v Tellamist P/L [2004] NSWCA 353. Ipp JA with whom Giles JA agreed affirmed Spencer v The Commonwealth (1907) 5 CLR 418; [1907] HCA 82 that when assessing market value the relevant q…
Arnotts Ltd v Trade Practices Commission [1990] FCA 473
Citation 9

…[2007] NSWSC 19 Re Arnotts Limited; Arnotts Biscuits Limited; Fledspac Limited and the Dickens Corporation Pty Limited v Trade Practices Commission (1990) 97 ALR 555/2; [1990] FCA 473 Rolleston v Insurance Australia Ltd [2017] NSWCA 168 Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349 Spencer v The Commo…
Johnson v Perez [1988] HCA 64
Citation 10

…76] 1 NSWLR 36 Iconic Group Australia Pty Limited v Mirak-Ardestani (Unreported, Local Court of NSW, Bradd LCM, 8 March 2018) Johnson v Perez (1988)166 CLR 35; [1988] HCA 64 Livingstone v Rawyards Coal Co (1880) 5 App Cas. 25 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Payton v Brooks [1974] RTR…
Spencer v The Commonwealth [1907] HCA 82
Citation 11

…990) 97 ALR 555/2; [1990] FCA 473 Rolleston v Insurance Australia Ltd [2017] NSWCA 168 Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349 Spencer v The Commonwealth (1907) 5CLR 418; [1907] HCA 82 State of NSW v Bitsikas; State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773 Yates v Mobile Marine Repairs Pty Ltd [2007] NSW…
Livingstone v Rawyards Coal Co [1880] UKHL 3
Citation 12 (Para 31)

…n as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” (see Lord Blackburn in Livingstone v Rawyards Coal Co (1880) 5 App Cas. 25 at 39).…
[1970] 1 QB 447 [1970] 1 QB 447
Citation 13

…] 1 L1 R 38 and Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Co Ltd [1970] 1AB 447. Mr Toomey endeavoured to distinguish Harbutt’s case [1970] 1 QB 447 on the ground that there the building destroyed was a factory vital to the maintenance of the plaintiff’s business. But it is in truth the controlling importan…
Pty Ltd v Sprowles 636 F Supp 1419
Citation 14 (Para 79)

…Section 79 of the Evidence Act 1995 requires opinion evidence to be based on the person’s training, study or experience. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [743] Heydon JA stated that for expert opinion to be admissible the reasoning process to be exposed:…
1 WLR 160 1 WLR 160
Citation 15 (Para 38)

…The plaintiff relies on obiter comments made by Lord Justice Aikens in Coles v Hetherton [ 2015] 1 WLR 160 that:…
[2015] 1 WLR 160 [2015] 1 WLR 160
Citation 16

…63 Motor Dealers and Repairers Regulation 2014 Sch 2 Form 5 Cases Cited: Burgoyne v BGC (Australia) Pty Ltd (1998)19 SR (WA) 101 Coles v Hetherton [2015] 1 WLR 160 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 Evans v Balog [1976] 1 NSWLR 36 Iconic Group Australia Pty Limited v Mirak-Ardestani (Unreported, Local Co…
1945 SC 395 1945 SC 395
Citation 17

…the reinstatement principle where the necessity of the case requires its application. Reliance was also placed upon Hutchison v Davidson 1945 SC 395. But there is nothing in that case which makes against allowing the cost of reinstatement where the circumstances are such that it is only by that means that fai…

Legislation Cited

Evidence Act 1995 (Cth) 79
2 mentions (from Para 79)
Motor Dealers Act 1974 (NSW) 24(7)
2 mentions (from Para 66)
Motor Dealers and Repairers Act 2013 (NSW) 63
2 mentions (from Para 21)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 21)

Medium Neutral Citation:	Breadner v Hall [2018] NSWLC 10
Hearing dates:	18 May 2018
Decision date:	15 June 2018
Jurisdiction:	Civil
Before:	Assessor Olischlager
Decision:	Verdict for the defendant.
Catchwords:	DAMAGES - Motor vehicle collision - assessment of damages - diminution of value - plaintiff seeks award for diminution of value in addition to the cost of repairs – assessment of diminution
Legislation Cited:	Evidence Act 1995 s 79 Motor Dealers Act 1974 (repealed) s 24(7) Motor Dealers and Repairers Act 2013 s 63 Motor Dealers and Repairers Regulation 2014 Sch 2 Form 5
Cases Cited:	Burgoyne v BGC (Australia) Pty Ltd (1998)19 SR (WA) 101 Coles v Hetherton [2015] 1 WLR 160 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611 Evans v Balog [1976] 1 NSWLR 36 Iconic Group Australia Pty Limited v Mirak-Ardestani (Unreported, Local Court of NSW, Bradd LCM, 8 March 2018) Johnson v Perez (1988)166 CLR 35; [1988] HCA 64 Livingstone v Rawyards Coal Co (1880) 5 App Cas. 25 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Payton v Brooks [1974] RTR 169 Port Stephens Shire Council v Tellamist P/L [2004] NSWCA 353 Purnell Motors Pty Ltd v Commission for Fair Trading [2007] NSWSC 19 Re Arnotts Limited; Arnotts Biscuits Limited; Fledspac Limited and the Dickens Corporation Pty Limited v Trade Practices Commission (1990) 97 ALR 555/2; [1990] FCA 473 Rolleston v Insurance Australia Ltd [2017] NSWCA 168 Roluke Pty Ltd v Lamaro Consultants Pty Ltd [2007] NSWSC 349 Spencer v The Commonwealth (1907) 5CLR 418; [1907] HCA 82 State of NSW v Bitsikas; State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773 Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463
Category:	Principal judgment
Parties:	Jessica Breadner (Plaintiff) Terry Hall (Defendant)
Representation:	Counsel: J de Greenlaw (for Plaintiff) Solicitors: Z Hiamanek (for Plaintiff) M C Koyuncu (for Defendant)
File Number(s):	2017/00193703
Publication restriction:	Nil