Darlco Transport Pty Ltd v Knight

District Court

New South Wales

Medium Neutral Citation:	Darlco Transport Pty Ltd v Knight [2014] NSWDC 137
Hearing dates:	10 July 2014
Decision date:	10 July 2014
Before:	Neilson DCJ
Decision:	Appeal dismissed
Catchwords:	APPEAL - Local Court Act 2007 s 39(2) - Whether denial of procedural fairness - Whether assessor failed to consider defendant's case
Legislation Cited:	Civil Procedure Act 2005 Local Court Act 1982 Local Court Act 2007
Cases Cited:	Habra v Reinke [2005] NSWSC 1090 Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LJRA 409 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Category:	Principal judgment
Parties:	Darlco Transport Pty Ltd (Appellant) Shaun Knight (Respondent)
Representation:	Solicitors Fraser Clancy Lawyers (Appellant) Martin P Board & Associates (Respondent) Counsel Mr P Barham (Appellant) Mr K Oliver (Respondent) Mr Silva (Respondent)
File Number(s):	13/386025
Publication restriction:	No

Judgment

1. HIS HONOUR: This is an appeal pursuant to s 39(2) of the Local Court Act 2007 from a decision of Assessor Olischlager sitting in the Small Claims Division of the Downing Centre Local Court on 5 December 2013. The plaintiff in the Court below is the defendant in these proceedings, and the defendant in the Court below is the plaintiff in these proceedings. To obviate confusion, I shall refer to the plaintiff in these proceedings as the appellant and the defendant in these proceedings as the respondent.

1. The respondent claimed the sum of $9,801. That was the cost to the respondent of the hire of an alternative vehicle whilst his own motor vehicle was being repaired. The period of the hire of the alternative vehicle was 75 days. The cost of the 75 days' demurrage was the sum claimed in the statement of claim. The appellant filed a defence in the Local Court not admitting any allegation of fact and denying the allegations of negligence. The ninth plea in that defence is this:

"The Defendant denies that the Plaintiff is entitled to the loss or damage as claimed. In addition, the Defendant says that the Plaintiff's claim is excessive and extravagant and that the Plaintiff has failed to take reasonable steps to mitigate it's [sic] loss."

At the hearing in the Small Claims Division of the Local Court, liability was admitted.

1. Counsel for the appellant in the Court below, Mr Phillips, first made a submission that the first aspect of the defence to the respondent's claim was that the respondent's evidence did not establish the need for a replacement vehicle and therefore the plaintiff was not entitled to any aspect of his claim for demurrage. Eventually after the assessor referred to certain case law, Mr Phillips elected not to press on with that submission.

1. Eventually the only issue left for determination by the assessor was the extent of the claim for demurrage; namely, for how long the Court would allow the respondent to have an alternative car at the appellant's expense. The second submission made by Mr Phillips to…