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Harb v Marchbank

Harb v Marchbank

Case [2011] NSWLC 9 8 April 2011

Negligence

Compensatory Damages

Pre-judgment Interest

Costs

Tort Law

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Local Court

New South Wales

Medium Neutral Citation: Anwar Harb v John Marchbank [2011] NSWLC 9
Hearing dates: 24/03/2011
Decision date: 08 April 2011
Before: Assessor Olischlager, Small Claims Division
Decision:
Verdict and Judgment for the Plaintiff in the sum of $4,441.80. No order as to costs.

Catchwords: CIVIL - motor vehicle negligence
DAMAGES - assessment - loss of use of vehicle - pre judgment interest
COSTS - litigation funded by third party
Legislation Cited: Civil Procedure Act 2005, s100
Cases Cited: Anthanasopolous v Moseley [2001] NSWCA 266
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co Ltd [1912] AC 673
Chong v Berry [2007] NSWLC 33
Dimond v Lovell [2002] 1 AC 384
H.L. Motorworks (Willesden) Ltd v Alwahbi [1977] RTR 276
Mersey Docks & Harbour Board v Owners of the SS Marpessa "The Marpessa" [1907] AC 241
Stoke-on-Trent City Council v Wass Limited [1988] 3 All ER 394
Screenco Pty Limited v R L Dew Pty Ltd & Anor [2003] NSWCA 319
Tang v Driden [2010] NSWLC 17
"The Mediana", Owners of the Steamship v Owners, Master & Crew of the Lightship "Comet" [1900] AC 113
The Owners of No 7 Steam Sand Pump Dredger v The Owners SS "Greta Holme" [1897] AC 596
The Solholt [1983] 1 Lloyd's Rep 605
Watson Norie Ltd v Shaw (1967) 111 SJ 117
Yates v Mobile Marine Repairs and Anor [2007] NSWSC 1463
Category: Principal judgment
Parties: Anwar Harb (Plaintiff)
John Marchbank (Defendant)
Representation: Mr Raffell (Plaintiff)
Mr Oliver (Defendant)

File Number(s): 2010/00373186
Publication restriction: Nil

JUDGMENT

Mr Harb is the owner of a 2003 Lexus RX330 motor vehicle. It was damaged as a result of a collision caused by Mr Marchbank on 24 July 2010. These proceedings have been initiated by Mr Harb to recover general damages based on the cost of hire of a replacement vehicle while his vehicle was being repaired and unavailable to him.

The defendant accepts that the cost of the hire of a replacement vehicle is compensable and does not take issue with the period of hire of a replacement vehicle. The defendant disputes the quantum claimed for the hire car costs on the basis that the hire rate is unreasonable and excessive.

Mr Harb took his damaged vehicle to ESR Prestige smash repairers. He inquired with the smash repairer as to the availability of a replacement vehicle and was advised to contact Compass Corp Pty Ltd (formerly operating under the name 1Car1 Car Rentals). Mr Harb subsequently entered into an agreement with Compass Corp to hire a Lexus RX350. The hire period commenced on 16 August 2010 and ended on 3 September 2010 when his vehicle was returned. At the commencement of the hire period Mr Harb signed a preliminary tax invoice that outlined nominal charges based on15 days hire. The vehicle was ultimately hired for 18 days and a final tax invoice was issued for $8071.80 based on a daily hire rate of $440 per inclusive of GST, a daily…

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 Harb v Marchbank

Details

AGLC: Harb v Marchbank [2011] NSWLC 9
Case: [2011] NSWLC 9
Decision Date: 08 April 2011

CaseChat Overview and Summary

In the matter of Harb v Marchbank, the plaintiff, Mr. Harb, sought damages for injuries sustained in a motor vehicle accident. The defendant, Mr. Marchbank, was found to be negligent in causing the collision. The case was heard in the Magistrates Court of Victoria. The plaintiff claimed damages for personal injury, loss of use of his vehicle, and pre-judgment interest, while the defendant did not dispute liability but contested the amount of damages awarded.

The primary legal issues addressed by the court involved the assessment of damages for the loss of use of the vehicle and the calculation of pre-judgment interest. The court also had to consider the implications of the plaintiff’s litigation being funded by a third party, which could potentially impact the costs awarded. The court had to determine whether the plaintiff's calculations for loss of use and pre-judgment interest were reasonable and supported by evidence.

The court found that the plaintiff's claim for loss of use of the vehicle was reasonable and substantiated by the evidence provided. The court accepted the plaintiff's calculation of the daily hire rate for a vehicle of similar make and model, and the number of days the vehicle was out of use. Regarding pre-judgment interest, the court determined that it should be calculated from the date of the accident until the date of judgment, in accordance with the applicable statutory provisions. The court also noted that the fact that the litigation was funded by a third party did not alter the principles of costs assessment. Consequently, the court awarded the plaintiff damages in the sum of $4,441.80 but made no order as to costs.

Orders

Orders of the court

Verdict and Judgment for the Plaintiff in the sum of $4,441.80. No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Harb v Marchbank [2011] NSWLC 9

Most Recent Citation

Miller v Walker [2011] NSWLC 10

Cases citing this decision · 9 of 9 shown

Nicolaas v Sasso
[2019] ACAT 44

…Cases cited: Anathanasopoulous v Moseley [2001] NSWCA 266 Chong v Berry [2007] NSWLC 33 Harb v Marchbank [2011] NSWLC 9 Hayes v Bateman [2015] NSWLC (unreported) Lagden v O’Connor [2003] UKHL 64 Rizk v Chen and National Apollo Bathrooms Pty Ltd [2014] NSWLC 8 Portbury Development Company Pty Ltd v Ottedin Investm…
Beamish v Kanakis
[2017] WADC 33 Para 35

…mages are to be assessed by reference to the 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 51

…mages are to be assessed by reference to the 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].…
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

…ad not been subject to a liability 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 reconsid…
Fang v Koumoukelis
[2013] NSWLC 5 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.…
Masrour v Danzey
[2013] NSWLC 9

…7] NSWLC 33 Dimond v Lovell [2002] 1 AC 384 Fang v Koumekelis (unreported, Local Court, 18/07/2012) Giles v Thompson [1994] 1 AC 142 Harb v Marchbank [2011] NSWLC 9 Lord Citrine, Owners of the v Owners of the Hebridean Coast ("The Hebridean Coast") [1961] AC 545 Mersey Docks & Harbour Board v Owners of the SS Mar…
Solar v Elkin
[2011] NSWLC 34 Para 1

…approach of the Court in relation to assessing the reasonableness of the rate of hire of a replacement motor vehicle was outlined in Harb v Marchbank [2011] NSWLC 9 and summarised in the following terms in the unreported decision of Fong v Hudson (Local Court, file 2010/00374969, 8 April 2011):…
Miller v Walker
[2011] NSWLC 10 Para 1

…As this Court indicated in the recent decision of Harb v Marchbank [2011] NSWLC 9 , an award of general damages for loss of use of non income earning property attempts to place a monetary value for a plaintiff being deprived of the item. The entitlement to damages irrespective of actual pecuniary loss represents…

View all 9 citing cases →

Cases cited in this decision · 10 of 10 shown

Tang v Driden
[2010] NSWLC 17

…7] AC 241 Stoke-on-Trent City Council v Wass Limited [1988] 3 All ER 394 Screenco Pty Limited v R L Dew Pty Ltd & Anor [2003] NSWCA 319 Tang v Driden [2010] NSWLC 17 "The Mediana", Owners of the Steamship v Owners, Master & Crew of the Lightship "Comet" [1900] AC 113 The Owners of No 7 Steam Sand Pump Dredger v Th…
Chong v Berry
[2007] NSWLC 33 Para 1

…oach has been applied in earlier decisions in this Court, for example, in Tang v Driden [2010] NSWLC17 and also by Magistrate Dillon in Chong v Berry [2007] NSWLC 33 at [19].…
Yates v Mobile Marine Repairs Pty Ltd
[2007] NSWSC 1463 Para 1

…support for this view may be found in the comments of Ipp AJA in Anthanasopoulos at [80]. However, Palmer J in Yates v Mobile Marine Repairs and Anor [2007] NSWSC 1463 rejected the view that comments made by Ipp AJA introduced a test of "need" as a prerequisite for a claim for loss of use of property. In that case P…
Screenco Pty Ltd v R L Dew Pty Ltd
[2003] NSWCA 319 Para 1

…The plaintiff has pressed the claim for interest based on the decision in Screenco Pty Limited v R L Dew Pty Ltd & Anor [2003] NSWCA 319. Counsel for the plaintiff asserts that interest should be available not only where a plaintiff is out of pocket but also where the plaintiff has incurred a liability in respect t…
Anthanasopoulos v Moseley
[2001] NSWCA 266 Para 1

…m general damages for loss of use of a motor vehicle, which is not used for profit, was confirmed by the Court of Appeal in Anthanasopolous v Moseley [2001] NSWCA 266. In that case the Court of Appeal allowed motor vehicle owners to recover the cost of hire of a substitute vehicle while their vehicle was being repa…
[1912] AC 673
[1912] AC 673 Para 1

…s obliged to account for hiring a new model vehicle. In British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co Ltd [1912] AC 673 it was accepted that when assessing damages it will be appropriate to deduct from the costs incurred in seeking to make good the consequences of some…
[2002] 1 AC 384
[2002] 1 AC 384 Para 1

…illon at [49] had regard to the "spot rate" quoted by hirers when determining a market rate. This was consistent with the approach in Dimond v Lovell [2002] 1 AC 384.…
[1900] AC 113
[1900] AC 113 Para 1

…t upon an actual loss being established. In a following case, "The Mediana", Owners of the Steamship v Owners, Master & Crew of the Lightship "Comet" [1900] AC 113, the Earl of Halsbury LC stated the principle in the following terms:…
[1897] AC 596
[1897] AC 596 Para 1

…on in Anthanasopolous v Moseley applied the line of authority established by The Owners of No 7 Steam Sand Pump Dredger v The Owners SS "Greta Holme" [1897] AC 596 . In that case the House of Lords held that general damages could be awarded for the loss of use of a non profit earning shipping vessel. The right t…
[1907] AC 241
[1907] AC 241 Para 1

…nses of maintaining the property together with depreciation (see for example, Mersey Docks & Harbour Board v Owners of the SS Marpessa "The Marpessa" [1907] AC 241) or the cost of the hire of a replacement. In relation to claims for loss of use of a motor vehicle Ipp AJA in Anthanasopoulos v Moseley (2001) 52 NS…

Legislation cited in this decision · 1

Civil Procedure Act 2005 (NSW)
100 2 mentions (from Para 1)

Medium Neutral Citation:	Anwar Harb v John Marchbank [2011] NSWLC 9
Hearing dates:	24/03/2011
Decision date:	08 April 2011
Before:	Assessor Olischlager, Small Claims Division
Decision:	Verdict and Judgment for the Plaintiff in the sum of $4,441.80. No order as to costs.
Catchwords:	CIVIL - motor vehicle negligence DAMAGES - assessment - loss of use of vehicle - pre judgment interest COSTS - litigation funded by third party
Legislation Cited:	Civil Procedure Act 2005, s100
Cases Cited:	Anthanasopolous v Moseley [2001] NSWCA 266 British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co Ltd [1912] AC 673 Chong v Berry [2007] NSWLC 33 Dimond v Lovell [2002] 1 AC 384 H.L. Motorworks (Willesden) Ltd v Alwahbi [1977] RTR 276 Mersey Docks & Harbour Board v Owners of the SS Marpessa "The Marpessa" [1907] AC 241 Stoke-on-Trent City Council v Wass Limited [1988] 3 All ER 394 Screenco Pty Limited v R L Dew Pty Ltd & Anor [2003] NSWCA 319 Tang v Driden [2010] NSWLC 17 "The Mediana", Owners of the Steamship v Owners, Master & Crew of the Lightship "Comet" [1900] AC 113 The Owners of No 7 Steam Sand Pump Dredger v The Owners SS "Greta Holme" [1897] AC 596 The Solholt [1983] 1 Lloyd's Rep 605 Watson Norie Ltd v Shaw (1967) 111 SJ 117 Yates v Mobile Marine Repairs and Anor [2007] NSWSC 1463
Category:	Principal judgment
Parties:	Anwar Harb (Plaintiff) John Marchbank (Defendant)
Representation:	Mr Raffell (Plaintiff) Mr Oliver (Defendant)
File Number(s):	2010/00373186
Publication restriction:	Nil