Gladstone Lazarus Pty Ltd v Tumur - [2018] NSWLC 6

Local Court

New South Wales

Amendment notes

Medium Neutral Citation: Gladstone Lazarus Pty Ltd v Tumur [2018] NSWLC 6
Hearing dates: 30 April and 12 June 2018
Decision date: 12 June 2018
Jurisdiction: Civil
Before: Greenwood LCM
Decision:
Judgement for the plaintiff

Catchwords: CONSUMER CREDIT - Credit hire agreement – claim for hire costs of replacement vehicles – actual and temporal loss - type of vehicle - entitled to recover the cost of hiring a replacement vehicle to the extent reasonable to incur expenditure – what is reasonable to meet needs - rate of hire – credit hire agreement does not represent market rate
Cases Cited: Anthanasopoulos v Moseley (2001) 52 NSWLR 262
Beamish v Kanakis [2017] WADC 33
Beveridge v Whitton [2001] NSWCA 6
Dennard (aka Clark v Ardington Electrical Services and other appeals) [2002] EWCA Civ 510
Dimond v Lovell [2002] 1 AC 384
Droga v Cannon [2015] NSWSC 1910
Fallon v Johnston [2018] VSC 273
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] 230 CLR 89
Gagner Pty Ltd t/a Indochine Cafe v Canturi Corporation Pty Ltd (2009) 262 ALR 691
Haines v Bendall (1991) 172 CLR 60
Hodson v Boonham (unreported, District Court of NSW, Gibbs DCJ, 15 December 2017, at 18-19)
Lachaume v Broughton (1903) 3 SR (NSW) 475
Lagden v O’Connor [2004] 1 AC 1067
Lowe v Pearce [2016] NSWLC 5
Patterson v Kenny [2017] WADC 58
Stocovaz v Fung [2007] NSWCA 199
The Mediana [1900] AC 113
Zurich Insurance v Umerji [2014] EWCA Civ 357
Category: Principal judgment
Parties: Gladstone Lazarus Pty Ltd (the plaintiff)
Zorgit Tumur (the defendant)
Representation: Mr Gruzman (for the plaintiff)
Mr Oliver (for the defendant)

File Number(s): 2017/00177907
Publication restriction: Nil

Judgment

Agreed facts

In October 2016 William Phillips, director of Gladstone Lazarus Pty Ltd (Gladstone), was driving the company’s Tesla (it later sold for $150,000) past Zorigt Tumur’s vehicle in Hardie Street Darlinghurst when Mr Tumur opened his car door. The door collided with the Tesla and Mr Tumur admits liability for the collision.
Gladstone operates a real estate business and needed a replacement car while the Tesla was repaired. Mr Philips, a real estate agent who works in the east & inner west of Sydney, used the vehicle to attend properties to make and give appraisals, do property inspections, attend buyer appointments and open homes and put up sold stickers. Sometimes he drove buyers around and also used the vehicle to do letter box drops.
Under a credit hire agreement with Right2Drive Pty Ltd (R2D), Gladstone used the following replacement vehicles:

a Mercedes Benz C200 at $149 per day for 5 days; and then

a Porsche Macan at $349 per day for 36 days,

both plus charges.

It was undisputed evidence that the Tesla was a more expensive vehicle than the Mercedes or Porsche and Teslas are not available for hire in NSW.
Gladstone claims the $14,851 hire costs from Mr Tumur.

Gladstone’s case

Gladstone says it acted reasonably at all times and should be…

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.

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Details

Case: [2018] NSWLC 6
Decision Date: 12 June 2018

CaseChat Overview and Summary

The plaintiff, Gladstone Lazarus Pty Ltd, commenced proceedings against the defendant, Tumur, in the Supreme Court of Queensland seeking recovery of hire costs of replacement vehicles following a hire vehicle being damaged in a collision. The plaintiff, a hire car company, argued that the defendant was liable for the costs incurred while the hire car was out of use due to the damage. The defendant disputed the claim, arguing that the hire costs were excessive and not reflective of market rates.
The court had to determine whether the plaintiff was entitled to recover the costs of hiring a replacement vehicle to the extent it was reasonable to incur the expenditure. The court also had to determine what was reasonable to meet the plaintiff's needs and whether the rate of hire was reflective of market rates. The court found that the plaintiff was entitled to recover the costs of hiring a replacement vehicle to the extent it was reasonable to incur the expenditure. The court held that the rate of hire was not reflective of market rates and therefore, the plaintiff was entitled to recover the reasonable costs incurred.
The court found that the plaintiff was entitled to recover the reasonable costs incurred in hiring a replacement vehicle. The court held that the rate of hire was not reflective of market rates and therefore, the plaintiff was entitled to recover the reasonable costs incurred. The court also found that the plaintiff was entitled to recover the costs of hiring a replacement vehicle that met their needs, even if it was not the exact same type of vehicle that was damaged. The court held that the plaintiff was entitled to recover the reasonable costs incurred in hiring a replacement vehicle.
The court made a judgement for the plaintiff and ordered the defendant to pay the reasonable costs incurred in hiring a replacement vehicle. The court held that the defendant was liable for the costs incurred while the hire car was out of use due to the damage. The court also held that the plaintiff was entitled to recover the reasonable costs incurred in hiring a replacement vehicle that met their needs.

Orders

Orders of the court

Judgement for the plaintiff

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.

Medium Neutral Citation:	Gladstone Lazarus Pty Ltd v Tumur [2018] NSWLC 6
Hearing dates:	30 April and 12 June 2018
Decision date:	12 June 2018
Jurisdiction:	Civil
Before:	Greenwood LCM
Decision:	Judgement for the plaintiff
Catchwords:	CONSUMER CREDIT - Credit hire agreement – claim for hire costs of replacement vehicles – actual and temporal loss - type of vehicle - entitled to recover the cost of hiring a replacement vehicle to the extent reasonable to incur expenditure – what is reasonable to meet needs - rate of hire – credit hire agreement does not represent market rate
Cases Cited:	Anthanasopoulos v Moseley (2001) 52 NSWLR 262 Beamish v Kanakis [2017] WADC 33 Beveridge v Whitton [2001] NSWCA 6 Dennard (aka Clark v Ardington Electrical Services and other appeals) [2002] EWCA Civ 510 Dimond v Lovell [2002] 1 AC 384 Droga v Cannon [2015] NSWSC 1910 Fallon v Johnston [2018] VSC 273 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] 230 CLR 89 Gagner Pty Ltd t/a Indochine Cafe v Canturi Corporation Pty Ltd (2009) 262 ALR 691 Haines v Bendall (1991) 172 CLR 60 Hodson v Boonham (unreported, District Court of NSW, Gibbs DCJ, 15 December 2017, at 18-19) Lachaume v Broughton (1903) 3 SR (NSW) 475 Lagden v O’Connor [2004] 1 AC 1067 Lowe v Pearce [2016] NSWLC 5 Patterson v Kenny [2017] WADC 58 Stocovaz v Fung [2007] NSWCA 199 The Mediana [1900] AC 113 Zurich Insurance v Umerji [2014] EWCA Civ 357
Category:	Principal judgment
Parties:	Gladstone Lazarus Pty Ltd (the plaintiff) Zorgit Tumur (the defendant)
Representation:	Mr Gruzman (for the plaintiff) Mr Oliver (for the defendant)
File Number(s):	2017/00177907
Publication restriction:	Nil