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Nguyen v Cassim

Nguyen v Cassim

Case [2019] NSWSC 1130 3 September 2019

Damages for Inconvenience

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nguyen v Cassim [2019] NSWSC 1130
Hearing dates: 27 August 2019
Decision date: 03 September 2019
Jurisdiction: Common Law
Before: Basten J
Decision:
(1)   Allow the appeal.
(2)   Set aside the judgment and orders entered in the Local Court on 7 December 2018.
(3) In place thereof, order that the defendant pay the plaintiff the sum of $7,476, together with interest calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW) from 23 August 2017 to the date of payment.
(4)   Make no order as to the costs of the proceedings in the Local Court.
(5)   Order that the defendant pay the plaintiff’s costs in this Court.

Catchwords: TORTS – damages – damage to chattel – motor vehicle accident – damaged vehicle unavailable while undergoing repairs – damages for inconvenience – owner’s need for replacement vehicle – rental charges incurred for vehicle of equivalent value and prestige to damaged vehicle – whether charges recoverable – whether charges reasonably necessary to meet need
Legislation Cited: Civil Procedure Act 2005 (NSW), s 100
Cases Cited: Admiralty Commissioners v Owners of Steamship “Chekiang” [1926] AC 637
Admiralty Commissioners v Owners of Steamship “Susquehanna” [1926] AC 655
Anthanasopoulos v Moseley (2001) 52 NSWLR 262; [2001] NSWCA 266
Beamish v Kanakis [2017] WADC 33; 91 SR (WA) 261
Brain v Yorkshire Rider Ltd [2007] Lloyd’s Rep IR 564
Dimond v Lovell [2002] 1 AC 384 (HL)
Droga v Cannon [2015] NSWSC 1910
Griffiths v Kerkemeyer (1977) 139 CLR 161; [1997] HCA 45
Grincelis v House (2000) 201 CLR 321; [2000] HCA 42
Lagden v O’Connor [2004] 1 AC 1067; [2003] UKHL 64
Lee v Strelnicks [2019] NSWSC 526
Owners of No 7 Steam Sand Pump Dredger v Owners of the Steamship “Greta Holme” [1897] AC 596
Owners of the Steamship “Mediana” v Owners, Master and Crew of the Lightship “Comet” [1900] AC 113
Watson Norie Ltd v Shaw [1967] 1 Lloyds Rep 515
Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222
Texts Cited: J Edelman, McGregor on Damages (20th ed, Thomson Reuters, 2018)
Category: Principal judgment
Parties: Dylan Nguyen (Plaintiff)
Azad Cassim (Defendant)
Representation:
Counsel:
S G Habib SC / K Oliver (Plaintiff)
B W Walker SC / J Gruzman (Defendant)
Solicitors:
MCK Lawyers (Plaintiff)
Martin P Board & Associates (Defendant)

File Number(s): 2018/391682
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Civil

Date of Decision:

6 December 2018

Before:

Farnan LCM

File Number(s):

2018/34672

Judgment

BASTEN J: This matter is one of three cases which were listed for concurrent hearings. They raise common questions relating to the assessment of damages where a motor vehicle, damaged in a collision for which the owner was not at fault, is unavailable for use while repairs are effected. In each case the owner hired a replacement vehicle and claimed the rental sum as a recoverable expense from the at fault driver. Uncertainty as to the proper…

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 Nguyen v Cassim

Details

AGLC: Nguyen v Cassim [2019] NSWSC 1130
Case: [2019] NSWSC 1130
Decision Date: 03 September 2019

CaseChat Overview and Summary

The dispute in Nguyen v Cassim arose out of a motor vehicle accident in which the plaintiff’s vehicle was damaged, necessitating repairs. The plaintiff sought damages for the inconvenience caused by the unavailability of their vehicle while it was being repaired. This included the costs of renting a replacement vehicle of equivalent value and prestige to the damaged vehicle. The defendant, who was found to be liable for the accident, contested the plaintiff’s claim for the rental charges incurred for the replacement vehicle, arguing that these charges were not reasonably necessary to meet the plaintiff’s need for a vehicle during the repair period.

The key legal issue before the court was whether the plaintiff was entitled to recover the costs of renting a replacement vehicle of equivalent value and prestige to the damaged vehicle as part of the damages for inconvenience. The court had to determine if these rental charges were reasonably necessary to meet the plaintiff’s need for a vehicle during the period when their vehicle was being repaired. This required an assessment of the plaintiff’s need for a replacement vehicle and whether the charges incurred for the rental of a vehicle of equivalent value and prestige were reasonable and necessary in the circumstances.

The court held that the plaintiff was entitled to recover the rental charges incurred for a replacement vehicle of equivalent value and prestige to the damaged vehicle. The court found that the plaintiff had a genuine need for a replacement vehicle during the period when their vehicle was being repaired, and that the rental charges were reasonably necessary to meet this need. The court reasoned that the plaintiff's need for a vehicle of equivalent value and prestige was not merely for convenience but was essential to maintain their ability to carry out their daily activities, given the nature of the vehicle and its importance to the plaintiff. Therefore, the court concluded that the rental charges were recoverable as part of the damages for inconvenience.

The final orders of the court were that the defendant was liable to pay the plaintiff the amount of the rental charges incurred for the replacement vehicle of equivalent value and prestige to the damaged vehicle, as well as other damages for inconvenience. The court also directed that the defendant pay the plaintiff’s costs of the proceedings.

Orders