John Marchbank v Anwar Harb

[2011] NSWDC 110

District Court

New South Wales

Medium Neutral Citation:	John Marchbank v Anwar Harb [2011] NSWDC 110
Hearing dates:	18 August 2011
Decision date:	26 August 2011
Jurisdiction:	Civil
Before:	Judge Peter Johnstone
Decision:	Appeal dismissed with costs
Catchwords:	Appeal from the Small Claims Division of the Local Court on the grounds of alleged procedural unfairness
Legislation Cited:	Local Court Act 2007
Cases Cited:	Dimond v Lovell [2002] 1 AC 384 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221
Category:	Principal judgment
Parties:	John Marchbank (Plaintiff)
Representation:	Mr D Grieve QC with Mr K Oliver of counsel (Plaintiff) Holman Webb (Plaintiff)
File Number(s):	2011/142613
Publication restriction:	None

Judgment

1. The plaintiff appeals from a judgment of the Local Court sitting in its Small Claims Division, made by an Assessor on 8 April 2011.

1. Such appeals may only be brought to the District Court on the grounds of lack of jurisdiction or denial of procedural fairness: s39(2) of the Local Court Act 2007.

1. The plaintiff, Mr Marchbank, contends that he was denied procedural fairness by the Assessor. He relies upon two grounds.

1. The first ground was set out in his Summons Commencing an Appeal filed in this court on 2 May 2011. I will refer to this as the "Noticed Fact" ground.

1. The second ground was only articulated in oral submissions. I will refer to this second ground as the "Non-Compensable Services" ground.

1. The defendant to the appeal, Mr Harb, contends that the appeal should be dismissed on the basis that the plaintiff has failed to demonstrate any procedural unfairness, either on the basis of the ground set out in the Summons, or on the basis of the ground articulated in oral submissions.

The judgment in the Local Court

1. Mr Harb's motor vehicle was damaged by reason of the negligence of Mr Marchbank, and had to be repaired. In addition to the cost of the repairs, Mr Harb claimed "demurrage", namely the costs incurred by him in having to hire a replacement vehicle during the period in which his vehicle was being repaired, and therefore unavailable for use by Mr Harb.

1. The issue before the Local Court was the reasonable cost of the hire of the replacement vehicle.

1. There was no dispute on appeal as to other matters, such as the length of the period of hire (18 days), or as to the type of vehicle hired. The only matter in contention was the daily rate of hire of the replacement vehicle actually hired. Mr Harb claimed hire costs at the rate of $400.00 a day, being the actual amount incurred by him for the hire of the replacement vehicle from Compass Corp Pty Ltd (the "Compass rate").

1. Mr Marchbank, however, contended that the amount to be awarded to Mr Harb should be limited to $200.00 a day for the hire of the replacement vehicle, that being the evidence as to the market cost of hiring a vehicle from a conventional hire company (the "conventional rate").

1. The Local Court made findings that…