Nguyen v Tran

Case [2018] NSWCA 215

Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Nguyen v Tran [2018] NSWCA 215
Hearing dates: 13 July 2018
Decision date: 28 September 2018
Before: Beazley P at [1];
Emmett AJA at [91];
Bellew J at [105]
Decision:

1.   Grant leave to appeal;

 

2.   Appeal allowed;

 

3.   Set aside the orders of Norton SC DCJ made on 23 November 2017;

 

4.   Judgment for the appellant;

 

5.   The respondent to pay the costs of the appeal and in the court below;

 6.   Direct the appellant to inform the Court of the course she wishes to take in relation to the recovery of monies paid to the respondent.
Catchwords: TORTS – Negligence – Motor vehicle accident – whether primary judge erred in accepting evidence that the respondent was in the car at the time of the accident – whether fact finding process of primary judge miscarried
Legislation Cited: Evidence Act 1995 (NSW), ss128, 140
Motor Accidents Compensation Act 1999 (NSW), ss 83, 117, 118
Motor Accidents Injuries Bill 2017 (NSW)
Supreme Court Act 1970 (NSW), s 75A, 101
Cases Cited: Antoun v Chidiac [2017] NSWDC 208
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69
Dearman v Dearman (1908) 7 CLR 549; [1908] HCA 84
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1; [2014] HCA 26
Insurance Australia Ltd v Checchia (2011) 80 NSWLR 1; [2011] NSWCA 101
Lee v NSW Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66
New South Wales v Hathaway [2010] NSWCA 184
Nominal Defendant v Smith (2015) 73 MVR 257; [2015] NSWCA 339
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Texts Cited: Explanatory Note to the Motor Accidents Compensation Bill 1999 (NSW)
Category:Principal judgment
Parties: Thi Thuy Tien Nguyen (Appellant)
Van Nam Tran (Respondent)
Representation:

Counsel:
K Rewell SC (Appellant)
L King SC; J Trainor (Respondent)

    Solicitors:
Hall & Wilcox (Appellant)
Than & Associates (Respondent)
File Number(s): 2017/381638
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Civil
Date of Decision:
23 November 2017
Before:
Norton SC DCJ
File Number(s):
2016/169835

Headnote

[This headnote is not to be read as part of the judgment]

The appellant, Ms Thi Thuy Tien Nguyen, was involved in a car accident on 20 November 2012, when she negligently turned her vehicle into the path of oncoming traffic contrary to a “No Right Turn” sign and collided with another car. The respondent, Mr Van Nam Tran, commenced proceedings against the appellant, claiming damages for injuries that he alleged he sustained as a passenger in the appellant’s car.…

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AGLC
Nguyen v Tran [2018] NSWCA 215
Case
[2018] NSWCA 215
Decision Date

CaseChat Overview and Summary

The appeal concerned a motor vehicle accident and the primary judge's findings of fact regarding the respondent's presence in the vehicle at the time of the collision. The appellant argued that the primary judge erred in accepting the respondent's evidence, suggesting a miscarriage in the fact-finding process. The matter was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had made an error in accepting the respondent's evidence concerning their presence in the vehicle during the accident and whether this error constituted a miscarriage of the fact-finding process.

The Court of Appeal found that the primary judge had indeed erred in accepting the respondent's evidence. The reasoning focused on inconsistencies and implausibilities within the respondent's account, which, when considered against other evidence, led the Court to conclude that the factual basis for the primary judge's decision was unsound. The Court applied principles of appellate review concerning findings of fact, particularly where those findings appear to be against the weight of the evidence or based on an erroneous assessment of credibility.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made by the primary judge. Judgment was entered for the appellant, who was also awarded costs of both the appeal and the proceedings at first instance. The appellant was directed to inform the Court of the desired course of action regarding the recovery of monies previously paid to the respondent.

Orders

Orders of the court

1. Grant leave to appeal;

2. Appeal allowed;

3. Set aside the orders of Norton SC DCJ made on 23 November 2017;

4. Judgment for the appellant;

5. The respondent to pay the costs of the appeal and in the court below;

6. Direct the appellant to inform the Court of the course she wishes to take in relation to the recovery of monies paid to the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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