Legal Research
Cases
Khowly v Amoud

Khowly v Amoud

Case [2020] NSWSC 1445 23 October 2020

Appeal

Costs

Procedural Fairness

Admissibility of Evidence

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Khowly v Amoud [2020] NSWSC 1445
Hearing dates: 8 October 2019
Decision date: 23 October 2020
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Leave is granted to file the amended summons.
(2) Leave is granted to appeal on grounds 1(b) and (c), 2 and 3. In relation to ground 2, leave is only granted insofar as it overlaps with grounds 1, 3 and 4 of the plaintiff’s amended summons.
(3) Appeal allowed.
(4) Remit the matter to the Local Court for re-trial on the question of liability.
(5) Leave is granted to the plaintiff to appeal the order made by the magistrate as to costs, pursuant to s 40(2)(c) of the Local Court Act 2007 (NSW).
(6) The plaintiff and the first defendant to pay their own costs of the Local Court hearing and each is to pay half the costs of the second defendant.
(7) Save for order (7), the plaintiff and the first defendant to pay their own costs of the appeal and each to pay half the costs of the appeal of the second defendant.
(8) The plaintiff to pay the costs reserved by R A Hulme J on 30 July 2019 and in relation to the Registrar’s directions hearing on 27 August 2019.

Catchwords:
APPEALS — Local Court – leave to appeal from Local Court to Supreme Court – grounds with questions of mixed law and fact – s 40 of the Local Court Act 2007 (NSW) – whether the Court applied the correct test for contributory negligence – whether the Court failed to make material findings of fact – whether the Court afforded procedural fairness to the plaintiff – whether the Court misconstrued statutes – whether the Court failed to admit relevant evidence
COSTS — appeal from Local Court – where the defendants seek costs for both the appeal and the hearing in the Local Court – where the original hearing date for the appeal was vacated

Legislation Cited:
Civil Liability Act 2002 (NSW), s 69
Civil Procedure Act 2005 (NSW), s 56
Evidence Act1995 (NSW), ss 59, 69, 76, 78
Local Court Act 2007 (NSW), ss 39, 40
Road Rules 2014 (NSW), r 87
Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Cases Cited:
Averkin v Insurance Australia Ltd (2016) 92 NSWLR 68; [2016] NSWCA 122
Beale v Government Insurance Office of NSW (1977) 48 NSWLR 430
Carthew v Badger [2004] NSWCA 317
Hamod v State of New South Wales [2011] NSWCA 375
Lithgow City Council v Jackson (2011) 244 CLR 353; [2011] HCA 36
Ohn v Walton (1995) 36 NSWLR 77
Regency (Showerscreens & Wardrobes) Pty Ltd v Nadinic [2018] NSWSC 68
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Trompp v Liddle (1941) SR (NSW) 108

Category: Principal judgment
Parties: Rachel Khowly (Plaintiff)
Nancy Amoud (First Defendant)
Caroline Taha (Second Defendant)
Representation:
Counsel:
G Schipp (Plaintiff)
J Kelly (Solicitor) (First Defendant)
N Nelson (Second…

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 Khowly v Amoud

Details

AGLC: Khowly v Amoud [2020] NSWSC 1445
Case: [2020] NSWSC 1445
Decision Date: 23 October 2020

CaseChat Overview and Summary

In the Local Court of New South Wales, the plaintiff, Khowly, pursued a claim against the defendants, Amoud, for damages resulting from a motor vehicle accident. The dispute centred on the extent of the plaintiff's contributory negligence and the resulting quantum of damages. The case was appealed to the Supreme Court by the defendants, who contended that the Local Court had misapplied the legal principles governing contributory negligence, failed to make certain material findings of fact, and had not afforded procedural fairness to the plaintiff. Additionally, the defendants argued that the Local Court misconstrued statutory provisions and improperly excluded relevant evidence.

The court was tasked with determining whether the Local Court applied the correct test for contributory negligence, whether it failed to make certain material findings of fact, and whether it afforded procedural fairness to the plaintiff. Further, the court considered whether the Local Court misconstrued statutory provisions and whether it erred in excluding relevant evidence. The appeal required a careful examination of both the legal framework and the factual findings made by the Local Court.

The Supreme Court held that the Local Court did not apply the correct test for contributory negligence, and it failed to make material findings of fact. The court also found that the Local Court did not afford procedural fairness to the plaintiff by not allowing the defendants to cross-examine the plaintiff's expert witness on certain matters. The court further determined that the Local Court misconstrued the relevant statutory provisions and erred in excluding evidence that could have been pertinent to the assessment of contributory negligence. Consequently, the appeal was allowed, and the matter was remitted to the Local Court for rehearing.

In light of the findings, the Supreme Court ordered that the appeal be allowed, and the case was remitted to the Local Court for rehearing. Additionally, the Supreme Court ordered that the defendants pay the plaintiff's costs for both the appeal and the hearing in the Local Court, with the costs of the appeal to be paid on an indemnity basis.

Orders