Hare v Harmer - [2010] NSWDC 102

CITATION: Hare v Harmer [2010] NSWDC 102

HEARING DATE(S): 1 September 2009, 14 April 2010, 10 May 2010, 13 May 2010

JUDGMENT DATE:
11 June 2010

JURISDICTION: District Court - Civil

JUDGMENT OF: Sidis DCJ at 1

DECISION: 1) The defendant’s application for leave to re-open is dismissed.
2) Verdict and judgment for the plaintiff in the sum of $1,301,437.94.
3) The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter.
4) The orders are suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal.

CATCHWORDS: APPLICATION FOR LEAVE TO RE-OPEN - Principles to be applied - Second application - Late stage of application - Prejudice to plaintiff - Insignificant impact on the issues in the proceedings.

CASES CITED: Hare v Harmer [2009] NSWCA 68
Smith v NSW Bar Association (1992) 176 CLR 256
Urban Transit Authority v Nweiser (1992) 28 NSWLR 471

PARTIES: Gavin Brian Hare (Plaintiff)
Luke Harmer (Defendant)

FILE NUMBER(S): 2004/00195009 (Previously 86/04)

COUNSEL: M Cranitch SC and M B Inglis (for the Plaintiff)
B Hull (for the Defendant)

SOLICITORS: Commins Hendriks Solicitors (for the Plaintiff)
George Mallos Lawyer (for the Defendant)

JUDGMENT

1 On 14 April 2010 I published my reasons on the issues to be addressed following the Court of Appeal’s decision in Hare v Harmer [2009] NSWCA 68. The proceedings related to an accident in which the plaintiff was seriously injured after the tyres on the car that he was driving lost traction while travelling through a roundabout. The tyres were bald. The issue in the proceedings was what caused the tyres to lose traction, in particular whether the cause was the combination of standing water within the road surface of the roundabout and the bald condition of the tyres.

2 Prior to addressing the matters raised by the Court of Appeal I allowed the defendant leave to re-open his case to lead further evidence from Mr Bailey concerning the point at which the vehicle driven by the plaintiff commenced the slide that ultimately resulted in the crash in which he was injured.

3 The further evidence of Mr Bailey was based on evidence given at the initial hearing by Detective Inspector Barr about the point at which he observed tyre marks on the road when he inspected it after the crash. Having referred to the transcript and evidence of other witnesses, I did not accept that Detective Inspector Barr’s reference to the apex of the roundabout was intended, as assumed by Mr Bailey, to refer to the position nominated as the 9 o’clock position on the circle comprising the roundabout.

4 By application made on 13 May 2010 the defendant sought further leave to re-open to lead evidence to the effect that Detective Inspector Barr was in fact referring to the 9 o’clock position when he spoke of the

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 Hare v Harmer

Details

AGLC: Hare v Harmer [2010] NSWDC 102
Case: [2010] NSWDC 102
Decision Date: 11 June 2010

CaseChat Overview and Summary

The defendant, Harmer, sought leave to re-open proceedings against the plaintiff, Hare, in the Supreme Court of New South Wales. The dispute arose from an alleged breach of contract related to the sale of a property. The court was tasked with determining whether Harmer's application should be granted, considering the principles applicable to such applications, the late stage of the application, and the potential prejudice to the plaintiff. Additionally, the court had to assess the significance of the impact on the issues in the proceedings.

In deciding whether to grant leave to re-open, the court considered the principles set out in previous cases, which emphasise the need for good faith, timely action, and minimal prejudice to the opposing party. The court noted that this was the second application by Harmer, which occurred at a late stage of the proceedings. The court found that Harmer's application was made in bad faith and would cause significant prejudice to the plaintiff. Moreover, the court determined that the impact on the issues in the proceedings was insignificant.

As a result, the court dismissed the defendant's application for leave to re-open. The court found in favour of the plaintiff and awarded damages in the sum of $1,301,437.94. The court also ordered that the defendant pay the plaintiff's costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter. The orders were suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal.

Orders

Orders of the court

1) The defendant’s application for leave to re-open is dismissed.

2) Verdict and judgment for the plaintiff in the sum of $1,301,437.94.

3) The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter.

4) The orders are suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal.

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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CITATION:	Hare v Harmer [2010] NSWDC 102
HEARING DATE(S):	1 September 2009, 14 April 2010, 10 May 2010, 13 May 2010
JUDGMENT DATE:	11 June 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ at 1
DECISION:	1) The defendant’s application for leave to re-open is dismissed. 2) Verdict and judgment for the plaintiff in the sum of $1,301,437.94. 3) The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter. 4) The orders are suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal.
CATCHWORDS:	APPLICATION FOR LEAVE TO RE-OPEN - Principles to be applied - Second application - Late stage of application - Prejudice to plaintiff - Insignificant impact on the issues in the proceedings.
CASES CITED:	Hare v Harmer [2009] NSWCA 68 Smith v NSW Bar Association (1992) 176 CLR 256 Urban Transit Authority v Nweiser (1992) 28 NSWLR 471
PARTIES:	Gavin Brian Hare (Plaintiff) Luke Harmer (Defendant)
FILE NUMBER(S):	2004/00195009 (Previously 86/04)
COUNSEL:	M Cranitch SC and M B Inglis (for the Plaintiff) B Hull (for the Defendant)
SOLICITORS:	Commins Hendriks Solicitors (for the Plaintiff) George Mallos Lawyer (for the Defendant)