Local Court of New South Wales
CITATION: Chong v Berry [2007] NSWLC 33 JURISDICTION: Civil PARTIES: Moe-Ava Chong
Nicole BerryFILE NUMBER: 4338/06 PLACE OF HEARING: Downing Centre DATE OF DECISION:
12/20/2007MAGISTRATE: Magistrate H Dillon CATCHWORDS: Damages – Quantum – Quantification of loss of use of motor vehicle after traffic accident – Quantification of loss in period before hiring replacement vehicle – Quantification of loss during period in which hire car used – “Market rate” -- Receipt of non-compensable benefits – Entitlement to claim collision damage waiver fee – Pre-judgment interest - Evidence – Onus of proof – Rebuttable assumption that invoice for hire of car corresponds with market rate – Matters that rebut presumption – Lack of “straightforwardness” LEGISLATION CITED: Civil Liability Act 2002
Civil Procedure Act 2005
Local Courts Act 1982CASES CITED: Admiralty Commissioners v SS Susequehanna (“The Susequehanna”) [1926] AC 655
Alexander v Lang [1967] Scots LT (Sheriff Court R) 64
Athanasopoulos v Moseley (2001) 52 NSWLR 262
Banco de Portugal v Waterlow & Sons Ltd [1932] AC 452
Batchelor v Burke (1981) 148 CLR 448
Bee v Jenson [2006] EWHC 3359 (Comm)
British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Burdis v Livsey [2003] QB 36
Dimond v Lovell [2002] 1 AC 384
Fire and All Risks Insurance Co Ltd (1978) 140 CLR 427
Fung v Stocavaz [2006] NSWSC 1345; (2007) ANZ Insurance Cases 61-730.
Giles v Thompson [1994] 1 AC 142
The Greta Holme [1897] AC 596
J&E Hall Ltd v Barclay [1937] 3 All ER 620
Lagden v O’Connor [2004] 1 AC 1067
Lodge Holes Colliery Co Ltd v Wednesbury Corporation [1908] AC 323
Marcic v Davies (20 Feb 1985)
Mersey Docks & Harbour Board v Owners of the SS Marpessa (“The Marpessa”) [1907] AC 241
Patel v London Transport Executive [1981] RTR 29
Radford v De Froberville [1977] 1WLR 1262
Reid v Brown (1952) WN(NSW) 131
Screenco Pty Ltd v RL Dew Pty Ltd (2003) 58 NSWLR 720
Solomon Pacific Resources NL v Acacia Resources Ltd (1996) 19 ACSR 677
Stanton v Drayton Commercial Investment Co [1983] 1 AC 501REPRESENTATION: Mr M. Hodges (Counsel for Plaintiff )
Anne Finnerty & Assoc (Solicitors for Plaintiff)
Mr K. Oliver (Counsel for Defendant)
Mason Black Lawyers (Solicitors for Defendant)ORDERS: Verdict and judgment for plaintiff in sum of $1136.75. Costs reserved.
Reasons for Decision
1 On 18 January 2006, the defendant, Ms Nicole Berry, drove her vehicle into the rear of a car being driven by the plaintiff, Mr Moe-Ava Chong, which was stationary at traffic lights at an intersection in Narrabeen. His car was driveable but had sustained damage. Ms Berry’s vehicle was insured. Liability was admitted and the subrogated insurer, NRMA Insurance, has paid the cost of the repairs of Mr Chong’s vehicle.
2 These proceedings concern a claim by Mr Chong for compensation for the loss of the use of his car while it was under repair. Although the…
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- AGLC
- Chong v Berry [2007] NSWLC 33
- Case
- [2007] NSWLC 33
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff had discharged the onus of proving that the hire car invoice corresponded with the market rate. However, the defendant raised issues regarding the straightforwardness of the evidence. The court considered the factors relevant to the loss of use of the vehicle, including the period before the hire car was obtained and the period during which the hire car was used. The court also examined the evidence regarding the collision damage waiver fee and determined that the plaintiff was entitled to claim it. The court calculated the pre-judgment interest and the total amount of damages to be awarded. The court concluded that the plaintiff was entitled to the damages claimed, with the exception of the amount claimed for the collision damage waiver fee, which was reduced by 10%.
The final orders of the court were that judgment be entered for the plaintiff in the sum of $1136.75, with costs reserved. The court awarded damages for the loss of use of the plaintiff's vehicle and the collision damage waiver fee, but reduced the amount claimed for the waiver fee by 10%. The court did not award any damages for the period during which the hire car was used, as the plaintiff had not provided sufficient evidence to support his claim. The court also awarded pre-judgment interest on the amount of damages awarded.
Orders
Orders of the court
Verdict and judgment for plaintiff in sum of $1136.75. Costs reserved. Reasons for Decision 1 On 18 January 2006, the defendant, Ms Nicole Berry, drove her vehicle into the rear of a car being driven by the plaintiff, Mr Moe-Ava Chong, which was stationary at traffic lights at an intersection in Narrabeen. His car was driveable but had sustained damage. Ms Berry's vehicle was insured. Liability was admitted and the subrogated insurer, NRMA Insurance, has paid the cost of the repairs of Mr Chong's vehicle.
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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