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Fang v Koumoukelis

Fang v Koumoukelis

Case [2013] NSWLC 5 13 May 2013

Assessment of Damages

Special Damages

General Damages

Costs

Civil Litigation & Procedure

Type to search within this case.

Local Court

New South Wales

Medium Neutral Citation: Fang v Koumoukelis [2013] NSWLC 5
Hearing dates: 22/04/2013
Decision date: 13 May 2013
Jurisdiction: Civil
Before: Assessor Olischlager
Decision:
1.Verdict and Judgment in favour of the plaintiff in the sum of $3,702.45 payable within 28 days.
2.Pre judgment interest not allowed.
3.Costs reserved.

Catchwords: CIVIL PROCEEDINGS - motor vehicle collision - assessment of damages - loss of use - hire of replacement motor vehicle - special damages - general damages
Legislation Cited:
Civil Procedure Act 2005
Road Transport (Vehicle Registration) Act 1997
Local Court Rules 2009
Cases Cited: Admiralty Commissioners v S.S. Chekiang [1926] AC 637
Anthanasopoulos v Moseley [2001] NSWCA 266
Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384
BHP Coal Ltd and Ors v O & K Orenstein & Koppel AG and Orenstein & Koppel AG and Ors [2008] QSC 141
Chong v Berry [2007] NSWLC33
Dimond v Lovell [2000] 2 WLR 1121
Dutt v Ridout [2009] NSWLC 23
Fang v Koumoukelis (Local Court, unreported, 28/7/2012)
Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Harb v Marchbank [2011] NSWLC 9
Lagden v O'Connor [2004] 1 AC 1067
Marchbank v Harb [2011] NSWDC 110
Masrour v Danzey (Local Court, unreported, 12/04/2013)
Mersey Docks & Harbour Board v Owners of the SS Marpessa (The Marpessa) [1907] AC 241
Miller v Walker [2011] NSWLC 10
Paff v Speed (1961) 105 CLR 549
Quach v Huntof Pty Ltd [2000] NSWSC 932
Reid v Brown (1952) WN (NSW) 131
Solar v Elkim [2011] NSWLC 34
Tang v Driden [2010] NSWLC 17
The Greta Holme [1897] AC 596
The Mediana [1900] AC 113
The Susquehanna [1926] AC 655
Yates v Mobile Marine Repairs Pty Ltd and Anor [2007] NSWSC 1463
Category: Principal judgment
Parties: Yan Fang (plaintiff)
Maria Koumoukelis (defendant)
Representation: Mr Livingston (for plaintiff)
Mr Oliver (for defendant)

File Number(s): 2011/00209701

Judgment

The plaintiff, Yan Fang, claims damages arising from a motor vehicle collision that occurred on 12 December 2010. There is no dispute that the collision was caused by the negligence of the defendant, Maria Koumoukelis. Ms Fang states her motor vehicle was being driven by her partner Jian Zhang along Forest Road Hurstville when Ms Koumoukelis struck the back of the plaintiff's vehicle in what might be commonly described as a rear end collision. The motor vehicle sustained damages as a consequence of the collision and required repairs.

The motor vehicle that was damaged by the defendant and is the subject of this claim is a 2008 BMW X5 registration [xxxxxx]. The motor vehicle was taken to a smash repairer, Alto Body Shop Artarmon on 4 January 2011. A quote for repairs was rendered in the sum of $9,871.74. The quotation was assessed by a motor vehicle loss assessor. Repairs were completed by 31 January 2011.

The cost of repairs does not form part of the plaintiff's claim. The motor vehicle was insured and the repair cost was presumably settled by the insurer.

The claim by…

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 Fang v Koumoukelis

Details

AGLC: Fang v Koumoukelis [2013] NSWLC 5
Case: [2013] NSWLC 5
Decision Date: 13 May 2013

CaseChat Overview and Summary

Fang, the plaintiff, brought an action against Koumoukelis, the defendant, in relation to a motor vehicle collision. The plaintiff sought damages for loss of use, the cost of hiring a replacement motor vehicle, special damages, and general damages. The case was heard in the Local Court of New South Wales. The central legal issues revolved around the correct calculation of loss of use and hire of a replacement motor vehicle, and the appropriateness of the special and general damages claimed.

The court considered the principles of assessing damages in motor vehicle collisions. It examined the evidence provided regarding the loss of use of the plaintiff's vehicle, the necessity and cost of hiring a replacement vehicle, and the special and general damages claimed. The court found that the plaintiff had adequately demonstrated the loss of use and the necessity of hiring a replacement vehicle, and that the costs claimed were reasonable. Regarding the general damages, the court considered the evidence and submissions made by both parties and concluded that the amount claimed was appropriate. The court determined that the total sum of $3,702.45 was the correct assessment of damages.

The court awarded judgment in favour of the plaintiff, ordering the defendant to pay the sum of $3,702.45 within 28 days. The court did not allow pre-judgment interest and reserved costs for another determination. The plaintiff was thus successful in their claim for damages arising from the motor vehicle collision.

Orders

Orders of the court

1.Verdict and Judgment in favour of the plaintiff in the sum of $3,702.45 payable within 28 days.

2.Pre judgment interest not allowed.

3.Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Fang v Koumoukelis [2013] NSWLC 5

Most Recent Citation

Supit v White [2013] NSWLC 27

Cases citing this decision · 5 of 5 shown

Beamish v Kanakis
[2017] WADC 33 Para 35

…e market rate for the hire of a similar replacement vehicle. See, for example, Anwar Harb v John Marchbank [2011] NSWLC 9 at [35], Fang v Koumoukelis [2013] NSWLC 5 at [88], Rizk v Chen and National Apollo Bathrooms Pty Ltd [2014] NSWLC 8 at [39].…
Lowe v Pearce
[2016] NSWLC 5 Para 26

…ransferred to the General Division of the Local Court from which a right of appeal on question of law lies to the Supreme Court. In Fang v Koumekelis [2013] NSWLC 5 proceedings were transferred to the General Division solely on the basis that a party wished to preserve the right of appeal on a complex question of…
Moraghan v Riley
[2015] NSWLC 27 Para 97

…but is rather to determine a unique rate, and that rate will be the basic hire rate. Solar v Elkin [2011] NSWLC 34 at [20] and Fang v Koumoukelis [2013] NSWLC 5 at [68], which favoured a range of dates and were referred to by the plaintiff, were not followed in Rizk v Chen [2014] NSWLC 8 at [32]-[40]. I generally…
Rizk v Chen and National Apollo Bathrooms Pty Ltd
[2014] NSWLC 8 Para 1

…The defendant submits that the approach of the Local Court in Fang v Koumoukelis [2013] NSWLC 5 and Harb v Marchbank [2011] NSWLC 9 when assessing general damages by reference to notional market rates is based on a misinterpretation of the decision of the House of Lords in The Greta Holme [1897] AC 596.…
Supit v White
[2013] NSWLC 27 Para 1

…to pay hire car charges this Court had declined to award pre-judgment interest (see, for example, Harb v Marchbank [2011] NSWLC 9, Fang v Koumoukelis [2013] NSWLC 5 and Masrour v Danzey (Local Court, Schurr LCM, 12 April 2013, unrep*). The plaintiff invites the Court to reconsider its approach.…

View all 5 citing cases →

Cases cited in this decision · 25 of 25 shown

Solar v Elkin
[2011] NSWLC 34 Para 1

…loss of use. Those decisions include Dutt v Ridout [2009] NSWLC 23 , Tang v Driden [2010] NSWLC 17 , Miller v Walker [2011] NSWLC 10 , Solar v Elkim [2011] NSWLC 34 and perhaps most notably, Harb v Marchbank [2011] NSWLC 9.…
John Marchbank v Anwar Harb
[2011] NSWDC 110 Para 1

…An appeal against the decision in Harb v Marchbank was subsequently dismissed by his Honour Judge Johnston in John Marchbank v Anwar Harb [2011] NSWDC 110, however, it must be noted that an appeal against a decision of the Local Court sitting in its Small Claims Division does not extend to grounds of questions of l…
Miller v Walker
[2011] NSWLC 10 Para 1

…s Court in assessing damages for loss of use. Those decisions include Dutt v Ridout [2009] NSWLC 23 , Tang v Driden [2010] NSWLC 17 , Miller v Walker [2011] NSWLC 10 , Solar v Elkim [2011] NSWLC 34 and perhaps most notably, Harb v Marchbank [2011] NSWLC 9.…
Harb v Marchbank
[2011] NSWLC 9 Para 1

…NSWLC 23 , Tang v Driden [2010] NSWLC 17 , Miller v Walker [2011] NSWLC 10 , Solar v Elkim [2011] NSWLC 34 and perhaps most notably, Harb v Marchbank [2011] NSWLC 9.…
Tang v Driden
[2010] NSWLC 17 Para 1

…lustrate the approach taken by this Court in assessing damages for loss of use. Those decisions include Dutt v Ridout [2009] NSWLC 23 , Tang v Driden [2010] NSWLC 17 , Miller v Walker [2011] NSWLC 10 , Solar v Elkim [2011] NSWLC 34 and perhaps most notably, Harb v Marchbank [2011] NSWLC 9.…
Dutt v Ridout [2009] NSWLC
[2009] NSWLC 23 Para 1

…ed a number of decisions that illustrate the approach taken by this Court in assessing damages for loss of use. Those decisions include Dutt v Ridout [2009] NSWLC 23 , Tang v Driden [2010] NSWLC 17 , Miller v Walker [2011] NSWLC 10 , Solar v Elkim [2011] NSWLC 34 and perhaps most notably, Harb v Marchbank [2011] N…
BHP Coal Pty Ltd v O & K Orenstein & Koppel AG
[2008] QSC 141 Para 1

…he basis of either special or general damages (see, for example, BHP Coal Ltd and Ors v O & K Orenstein & Koppel AG and Orenstein & Koppel AG and Ors [2008] QSC 141 and Lord Hobhouse at 1140 in Dimond v Lovell [2000] 2 WLR 1121 .…
Chong v Berry
[2007] NSWLC 33 Para 1

…In the case of Chong v Berry [2007] NSWLC 33 his Honour Magistrate Dillon gave judgment on the assessment of damages for loss of use of a motor vehicle in circumstances where the plaintiff had obtained a replacement vehicle on a credit hire basis. Magistrate Dillon noted at [3]:…
Yates v Mobile Marine Repairs Pty Ltd
[2007] NSWSC 1463 Para 1

…replacement vehicle to establish an entitlement for general damages. This uncertainty was resolved in Yates v Mobile Marine Repairs Pty Ltd and Anor [2007] NSWSC 1463. In that case the Court was dealing with a general damages claim for loss of use of a yacht that was used exclusively for pleasure. The owner claimed…
Anthanasopoulos v Moseley
[2001] NSWCA 266

…he actual cost to the plaintiff, but generally, by reference to the market cost of supplying a replacement vehicle ( Anthanasopoulos v Moseley [2001] 52 NSWLR 262 (at 276-277)).…
Quach v Huntof Pty Limited
[2000] NSWSC 932 Para 1

…edit hire companies or related entities to recover hire charges on behalf of plaintiffs was illegal by reason of champerty. In Quach v Huntof Pty Ltd [2000] NSWSC 932 the Supreme Court dismissed an appeal against the finding of her Honour Magistrate Madgwick in 1998 that the champertous nature of such arrangements…
Grincelis v House
[2000] HCA 42

…eference to the income foregone by the provider of the services, but, generally, by reference to the market cost of providing them: Grincelis v House [2000] HCA 42; (2001) 201 CLR 321 at 327 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Van Gervan v Fenton[1992] HCA 54; (1992) 175 CLR 327.…
Griffiths v Kerkemeyer
[1977] HCA 45 Para 1

…roceedings be removed to the Court of Appeal for determination of various issues including whether the principle enunciated in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 in relation to the entitlement to recover damages for gratuitously provided services in a personal injury case were applicable in…
Paff v Speed
[1961] HCA 14 Para 1

…The distinction between a special damages and general damages was described by Fullagher J in Paff v Speed (1961) 105 CLR 549 in the following terms:…
Lagden v. O'Connor
[2003] UKHL 64 Para 1

…The legal principles applied in the United Kingdom were described by Lord Hope in the House of Lords decision of Lagden v O'Connor [2003] UKHL 64 at [27]:…
Van Gervan v Fenton
[1992] HCA 54

…f providing them: Grincelis v House [2000] HCA 42; (2001) 201 CLR 321 at 327 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Van Gervan v Fenton[1992] HCA 54; (1992) 175 CLR 327.…
[1926] AC 655
[1926] AC 655 Para 1

…In The Susquehanna [1926] AC 655 Viscount Dunedin assessed damages by reference to the capital and maintenance cost of keeping a stand in vessel available to replace the damaged vessel.…
[1912] AC 673
[1912] AC 673

…02), referred to the House of Lords decision in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673.…
[1900] AC 113
[1900] AC 113 Para 1

…loss of use of property the distinction between special damages and general damages was perhaps best stated by the Earl of Halsbury LC in The Mediana [1900] AC 113 at 117:…
[1897] AC 596
[1897] AC 596 Para 1

…the application of the Griffiths v Kerkemeyer principle as it was well established, pursuant to the line of authority commencing with The Greta Holme [1897] AC 596 that injury to property which deprives a party of the use of a non-income earning chattel is compensable.…
[1907] AC 241
[1907] AC 241 Para 1

…In The Marpessa [1907] AC 241 the Court allowed the cost of maintaining the dredger and interest on its depreciated value.…
[2004] 1 AC 1067
[2004] 1 AC 1067 Para 1

…credit car hire cases: Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 , Dimond v Lovell [2000] 2 WLR 1121 and Lagden v O'Connor [2004] 1 AC 1067.…
[1926] AC 637
[1926] AC 637 Para 1

…In Admiralty Commissioners v S.S. Chekiang [1926] AC 637 interest on the depreciated value of the non-profit earning vessels was awarded.…
[2000] 2 WLR 1121
[2000] 2 WLR 1121 Para 1

…g the principles of assessing damages in credit car hire cases: Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 , Dimond v Lovell [2000] 2 WLR 1121 and Lagden v O'Connor [2004] 1 AC 1067.…
Dimond v Lovell
(2002) 1 AC 384

…the burden of proof must lie on plaintiffs to quantify their true losses by bringing into account the additional benefits received. Lord Hoffman, in Dimond v Lovell (2002) 1AC 384 (at 402), referred to the House of Lords decision in British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co…

Legislation cited in this decision · 5

Civil Procedure Act 2005 (NSW)
1 mention (from Para 1)
Consumer Credit Act 1974 c.39
1 mention (from Para 1)
Local Court Rules 2009 (NSW)
1 mention (from Para 1)
Road Transport (Vehicle Registration) Act 1997 (NSW)
1 mention (from Para 1)
Stingel v Clark
1 mention (from Para 1)

Medium Neutral Citation:	Fang v Koumoukelis [2013] NSWLC 5
Hearing dates:	22/04/2013
Decision date:	13 May 2013
Jurisdiction:	Civil
Before:	Assessor Olischlager
Decision:	1.Verdict and Judgment in favour of the plaintiff in the sum of $3,702.45 payable within 28 days. 2.Pre judgment interest not allowed. 3.Costs reserved.
Catchwords:	CIVIL PROCEEDINGS - motor vehicle collision - assessment of damages - loss of use - hire of replacement motor vehicle - special damages - general damages
Legislation Cited:	Civil Procedure Act 2005 Road Transport (Vehicle Registration) Act 1997 Local Court Rules 2009
Cases Cited:	Admiralty Commissioners v S.S. Chekiang [1926] AC 637 Anthanasopoulos v Moseley [2001] NSWCA 266 Bent v Highways and Utilities Construction Ltd [2011] EWCA Civ 1384 BHP Coal Ltd and Ors v O & K Orenstein & Koppel AG and Orenstein & Koppel AG and Ors [2008] QSC 141 Chong v Berry [2007] NSWLC33 Dimond v Lovell [2000] 2 WLR 1121 Dutt v Ridout [2009] NSWLC 23 Fang v Koumoukelis (Local Court, unreported, 28/7/2012) Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Harb v Marchbank [2011] NSWLC 9 Lagden v O'Connor [2004] 1 AC 1067 Marchbank v Harb [2011] NSWDC 110 Masrour v Danzey (Local Court, unreported, 12/04/2013) Mersey Docks & Harbour Board v Owners of the SS Marpessa (The Marpessa) [1907] AC 241 Miller v Walker [2011] NSWLC 10 Paff v Speed (1961) 105 CLR 549 Quach v Huntof Pty Ltd [2000] NSWSC 932 Reid v Brown (1952) WN (NSW) 131 Solar v Elkim [2011] NSWLC 34 Tang v Driden [2010] NSWLC 17 The Greta Holme [1897] AC 596 The Mediana [1900] AC 113 The Susquehanna [1926] AC 655 Yates v Mobile Marine Repairs Pty Ltd and Anor [2007] NSWSC 1463
Category:	Principal judgment
Parties:	Yan Fang (plaintiff) Maria Koumoukelis (defendant)
Representation:	Mr Livingston (for plaintiff) Mr Oliver (for defendant)
File Number(s):	2011/00209701