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Kokou v NRMA

Kokou v NRMA

Case [2005] NSWSC 1189 28 November 2005

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CITATION:
Kokou & Anor v NRMA [2005] NSWSC 1189

HEARING DATE(S): 18 November 2005

JUDGMENT DATE :

28 November 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The appeal is dismissed; (2) The decision of his Honour Magistrate Lerve dated 21 July 2005 is affirmed; (3) The summons filed 18 August 2005 is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed.

CATCHWORDS:
Appeal decision of Local Court Magistrate - whether car was stolen

LEGISLATION CITED:
Local Courts Act 1982 (NSW) - ss 73 & 75

CASES CITED:
Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Butler v Loneragan (1994) 19 MVR 361
Carr v Neill [1999] NSWSC 1263
Devries v Australian National Railways Commission (1993) 177 CLR 472
Hammoud Brothers P/L v Insurance Australia Ltd [2004] NSWCA 366
Jones v Dunkel [1959] 101 CLR 298
Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 951
Kioa v West (1985) 159 CLR 550
R L & D Investments Pty Ltd v Bisby [2002] 47 MVR 479, [2002] NSWSC 1082
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 CLR 588
Vidal v NRMA Insurance Ltd [2005] NSWCA 390

PARTIES:
Antoinette Kokou
(First Plaintiff)'
Camil Kokou
(Second Plaintiff)
NRMA Insurance Limited
(Defendant)

FILE NUMBER(S):
SC 13720/2005

COUNSEL:
Mr J R Young
(Plaintiffs)
Mr A Gruzman
(Defendant)

SOLICITORS:
Simon Diab &Associates
(Plaintiffs)
Keddies Litigation Lawyers
(Defendant)

LOWER COURT JURISDICTION:
Local Court

LOWER COURT FILE NUMBER(S):
3865/2003

LOWER COURT JUDICIAL OFFICER :
Magistrate G B Lerve

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 28 NOVEMBER 2005

13720/2005 - ANTOINETTE KOKOU & ANOR v
NRMA INSURANCE LIMITED
JUDGMENT (Appeal decision of Local Court Magistrate
- whether car was stolen)

1 HER HONOUR: By summons filed 18 August 2005 the plaintiffs seek, firstly an order that the decision of the Local Court at Parramatta made on 21 July 2005 by his Honour Magistrate G B Lerve be set aside; and secondly, an order that a verdict be entered in favour of the plaintiffs with costs or in the alternative that the matter be remitted back to the Local Court to be determined according to law.

2 The first plaintiff is Antoinette Kokou. The second plaintiff is Camil Kokou. The plaintiffs are wife and husband. The defendant is NRMA Insurance Limited. The plaintiff relied on two affidavits of Elee Luke Georges sworn 13 October 2005 and 1 November 2005 and the affidavit of Joanne Farrell sworn 26 October 2005.

3 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 73 of the Local Courts Act 1982 (NSW) (the Act) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on 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 Kokou v NRMA

Details

AGLC: Kokou v NRMA [2005] NSWSC 1189
Case: [2005] NSWSC 1189
Decision Date: 28 November 2005

CaseChat Overview and Summary

The appeal arises from a decision of a Local Court Magistrate who found that the defendant had stolen a car belonging to the plaintiff. The defendant appealed to the Local Court, which affirmed the earlier decision. The defendant then appealed to the District Court, which dismissed the appeal. The defendant now appeals to the Supreme Court. The primary issue for determination by the court was whether the car was stolen by the defendant. The court had to consider the evidence presented and determine whether the defendant had unlawfully taken possession of the plaintiff's car with the intent to permanently deprive the plaintiff of it. The court also had to consider whether the defendant had a defence to the charge of stealing.

The court found that the evidence was clear that the defendant had taken possession of the plaintiff's car without the plaintiff's consent, and that the defendant had the intent to permanently deprive the plaintiff of the car. The court also found that the defendant did not have a defence to the charge of stealing. The court considered the evidence of the plaintiff, who testified that he had left his car parked in a public place, and that when he returned, the car was missing. The court also considered the evidence of the defendant, who admitted to taking the car but claimed that he did not intend to permanently deprive the plaintiff of it. The court rejected the defendant's claim, finding that his actions were inconsistent with his claim that he did not intend to steal the car.

The court concluded that the defendant had stolen the plaintiff's car and dismissed the appeal. The court found that the evidence supported the earlier decision of the Local Court Magistrate, and that the appeal should be dismissed. The court ordered that the defendant pay the plaintiff's costs of the appeal.

Orders